On Monday, Florida Solicitor General Henry Whitaker and Texas Solicitor General Aaron Nielson defended state laws that restrict content moderation by social media platforms, telling the Supreme Court they uphold a First Amendment value by protecting freedom of speech. To the contrary, former U.S. Solicitor General Paul Clement said on behalf of the tech trade group NetChoice, those laws violate the First Amendment by interfering with constitutionally protected editorial judgments.
It is not clear whether the Court will resolve that issue now rather than remanding the two cases for further development. But most of the justices seemed inclined to side with NetChoice.
In Moody v. NetChoice, Whitaker argued that Florida’s law serves “an important First Amendment interest” by “promoting and ensuring the free dissemination of ideas.” Chief Justice John Roberts was immediately skeptical.
Roberts noted that Whitaker had expressed concern about the ways in which Facebook et al. use their “market power” to shape online debate. “Your response to that is going to be exercising the power of the state to control what goes on on the social media platforms,” the chief justice said. “I wonder, since we’re talking about the First Amendment, whether our first concern should be with the state regulating what we have called ‘the modern public square.'”
In NetChoice v. Paxton, the Texas case, Roberts noted that “the First Amendment doesn’t apply” to social media companies. “The First Amendment restricts what the government can do,” he said, “and what the government’s doing here is saying you must do this: ‘You must carry these people; you’ve got to explain if you don’t.’ That’s not the First Amendment.” The case “turns on whether” decisions about who may speak and what they may say should be left with the “various platforms” or the government, Roberts said, and “the First Amendment has a thumb on the scale when that question is asked.”
Roberts also questioned Nielson’s analogy between social media platforms and the telegraph, a “common carrier” barred from discriminating against communications based on their content. “You’re assuming that they are like the telegraph,” he said. “The telegraph had a particular[ly] compelling type of monopoly. I mean, if you didn’t want to use the telegraph that was there, you usually didn’t have an alternative choice.” Likewise with railroads and “other types of common carriers,” he added. “I’m not sure the same thing applies with respect to social [media] platforms.” In the Texas case, Roberts described that market as “incredibly dynamic,” suggesting that the common carrier model “may be totally inapt” in “the wild west economy surrounding the social media platforms and the Internet.”
Justice Brett Kavanaugh likewise was openly skeptical of the position taken by Florida and Texas. During oral arguments in the Florida case, Kavanaugh quoted “a really important sentence in our First Amendment jurisprudence” from the Court’s 1976 decision in Buckley v. Valeo, which dealt with campaign finance regulations: “The concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”
Kavanaugh also noted the Court’s 1974 decision in Miami Herald v. Tornillo, which rejected a Florida law giving political candidates a “right of reply” to unflattering newspaper articles. “The Court went on at great length…about the power of the newspapers,” acknowledging “vast changes” that had placed “in a few hands the power to inform the American people and shape public opinion,” which “had led to abuses of bias and manipulation,” he said. “The Court accepted all that but still said that wasn’t good enough to allow some kind of government-mandated fairness.”
Kavanaugh suggested that Florida’s logic of “government-mandated fairness” on social media could support similar restrictions on publishers, movie theaters, bookstores, and newsstands, requiring them to provide a forum for material they otherwise would reject. Whitaker replied that bookstores, unlike social media platforms, are “engaging in inherently expressive conduct.”
Like Roberts, Kavanaugh emphasized that the First Amendment does not apply to private businesses. “In your opening remarks,” he told Whitaker, “you said the design of the First Amendment is to prevent ‘suppression of speech.’ And you left out what I understand to be three key words…’by the government.'”
When “the government excludes speech from the public square, that is obviously a violation of the First Amendment,” Kavanaugh said while questioning Clement in the Florida case. “When a private individual or private entity makes decisions about what to include and what to exclude, that’s protected generally [as] editorial discretion, even though you could view the private entity’s decision to exclude something as ‘private censorship.'”
Whitaker noted that “upwards of 99 percent of what goes on the platforms is basically passed through without review,” suggesting that Facebook et al. do not engage in meaningful editing prior to publication. But in the 1995 case Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Kavanaugh noted, the Court upheld a private organization’s First Amendment right to exclude a gay pride float from a St. Patrick’s Day parade, and “the mere fact that the parade organizer usually took almost all comers was irrelevant to the First Amendment interests.” In that case and others, Kavanaugh said, the Court has “emphasize[d] editorial control as being fundamentally protected by the First Amendment.”
In Hurley, Justice Elena Kagan noted, “we said they don’t have a lot of rules, but they have some rules, and we’re going to respect the rules that they do have. Even though they let a lot of people come in, they don’t let a few people come in, and that seems to be quite important to them.” Similarly, she said, social media companies may decide “you can’t have hate speech on this site” or “you can’t have misinformation with respect to particular subject matter areas.” They “have thousands and thousands of employees who are devoted to enforcing those rules,” she noted, and “they’re making content judgments about the kind of speech that they think they want on the site and the kind of speech that they think is intolerable.”
In general, Kagan said, “all these places say we’re open for business—post whatever you like, and we’ll host it. But there are exceptions to that…which the companies take seriously.” They might, for example, make an exception for “misinformation about voting,” “misinformation about certain public health issues,” “hate speech,” or “bullying.” Kagan asked Whitaker why it wouldn’t be “a classic First Amendment violation for the state to come in and say, we’re not…going to allow you to enforce those sorts of restrictions even though…it’s like an editorial judgment.” Kagan made her answer clear, saying, “I take it to be First Amendment activity.”
Justice Amy Coney Barrett agreed that “it all turns on editorial control,” asking Whitaker why Facebook et al. are not relevantly similar to a newspaper in that respect. He replied that “it is a strange kind of editor” that “does not actually look at the material that is going [into] its compilation.” But even algorithms that filter posts on a larger scale reflect editorial judgments, Barrett noted: “TikTok might have boosted pro-Palestinian speech and reduced pro-Israel speech. That’s a viewpoint, right? And if you have an algorithm do it, is that not speech?”
Social media platforms organize content “in ways that reflect preferences, that are expressive of their terms and conditions,” Barrett observed. “Don’t all methods of organization reflect some kind of judgment?” And “even though there may not be physical space constraints,” she said, “there are the constraints of attention,” which require platforms to “present information to a consumer in some sort of organized way” so “the consumer can absorb it.”
Barrett, like Kavanaugh, brought up bookstores: “Could Florida enact a law telling bookstores that they have to put everything out by alphabetical order and that they can’t organize or put some things closer to the front of the store that they think their customers will want to buy?” Whitaker did not directly address that question, although he conceded that “you certainly could imagine…an algorithm that could be expressive.”
Justice Ketanji Brown Jackson questioned the significance of describing social media platforms as common carriers. “I hear you suggesting that we can just say Facebook is a common carrier and, therefore, everything it does qualifies as conduct and not speech,” she told Whitaker. “And I don’t think that’s really the way we’ve done this in our past precedents.”
Jackson wondered if Nielson was “suggesting that a common carrier…could never have First Amendment protected activity.” She suggested that the constitutional analysis depends not on an organization’s classification but on “what exactly” it is “doing in a particular circumstance.”
Justice Sonia Sotomayor also suggested that the “common carrier” label does not accomplish what Florida wants. The government can’t do “some of these things even to common carriers,” she said. “A common carrier doesn’t have to permit unruly behavior….It can throw somebody off the train if they are threatening somebody else or if they’re doing other things.” During the oral arguments in the Texas case, Sotomayor said, “I have a problem with laws like this that are so broad that they stifle speech just on their face.”
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