If privately owned social media platforms enforce speech policies you don’t like, should you: a) publicly tell them off while finding other means of getting out your message; or b) use the coercive power of government to impose different policies that you prefer? State officials in Florida and Texas tried the second approach and it looks like the U.S. Supreme Court is about to hand them a spanking.
Big Tech and Muzzled Speech
Big tech companies have been criticized in recent years for imposing arbitrary and ideologically motivated restrictions on speech. Often, the platforms responded to government pressure, as revealed by the Twitter Files and Facebook Files. Government agencies got slapped by the courts for their censorious shenanigans. But the platforms have their own editorial biases and, whatever we may think of them, have the right to make their own rules for good or ill.
Some government officials don’t agree. In 2021, Texas passed a law that forbade large social media platforms to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” It was a good defense of free expression in the context of a publicly owned forum, but “blatantly unconstitutional,” as Reason‘s Jacob Sullum pointed out, when imposed on private organizations exercising discretion over their property. Florida passed an even broader speech regulation that was quickly trimmed back by the courts.
“Platforms are private enterprises, not governmental (or even quasi-governmental) entities,” Judge Kevin C. Newsom wrote for the U.S. Court of Appeals for the 11th Circuit in 2022. “No one has a vested right to force a platform to allow her to contribute to or consume social-media content.”
Under challenge by NetChoice, a trade group which favors free enterprise and free expression, and the Computer & Communications Industry Association, both laws landed this week before the U.S. Supreme Court as Moody v. NetChoice and NetChoice v. Paxton. If early impressions are correct, it looks like the nation’s high court is poised to largely echo Judge Newsom.
Skeptical Justices
“Justice Elena Kagan was one of several justices to question the constitutionality of the Texas and Florida laws,” Amy Howe noted for SCOTUSblog. “Why, she asked [Florida Solicitor General Henry] Whitaker, ‘isn’t this a classic First Amendment violation,’ when the state is preventing the platforms from making their own editorial judgments.”
Kagan is one of the left-leaning justices on the court, but her concerns were shared by several of her colleagues on the right.
“Justice Brett Kavanaugh also appeared unconvinced,” commented Howe. “He noted that the First Amendment protected against the suppression of speech ‘by the government’ (an observation echoed by Chief Justice John Roberts) and that the Supreme Court has a line of cases ‘which emphasize editorial control as being fundamentally protected by the First Amendment.'”
Howe added, “Justice Amy Coney Barrett seemed to agree with Kavanaugh.”
Justices Thomas and Alito seemed more inclined to let the laws stand, but the back-and-forth before the court left the distinct impression that the majority sees both the Texas and Florida laws as violations of the First Amendment.
Positive Omens for Free Expression
“The oral arguments suggest a clear majority of the justices believe these laws violate the First Amendment rights of social media providers,” observed George Mason University law professor Ilya Somin. “I think it’s clear there are at least five or six justices who accept the distinctions made by Roberts and Kavanaugh [between state and private action], and therefore are inclined to rule against Florida and Texas on that basis.”
Both Somin and Howe point out that several justices are skeptical of the lower court opinion against Florida’s law—not because it’s more respectful of the First Amendment than its Texas counterpart, but because it applies to so much online activity that isn’t all protected by the First Amendment.
“In the Florida case, several justices suggested they might not be able to uphold the lower-court ruling against the law, because that state’s legislation is so broad that it may cover websites that aren’t expressive in nature at all, such as Uber or Etsy,” comments Somin. “The social media firm plaintiffs brought a facial challenge to the law, which may require them to prove that the law is unconstitutional in all or nearly of its applications.”
That might force the plaintiffs challenging Florida’s law to amend their complaint so that it’s limited to editorial discretion over expressive activity.
Separation of Speech and State
The battle over the Florida and Texas laws has been joined by numerous third parties, many of which filed amicus briefs in the case. Among those groups is the Foundation for Individual Rights and Expression (FIRE), which takes a traditional civil libertarian stance in favor of keeping government out of the business of regulating, mandating, or suppressing speech.
“We argued that it’s unconstitutional for Florida and Texas to prohibit large social media platforms from moderating content based on their own standards,” Talia Barnes wrote for FIRE. “For similar reasons, FIRE also filed an amicus brief in another case that will be heard by the Court this term, Murthy v. Missouri, which surrounds government ‘jawboning’ — that is, pressuring private social media platforms to suppress and deplatform disfavored views. In both NetChoice cases and in Murthy, we’re urging the Court to keep the government’s hands out of online content moderation.”
Obviously, there’s more than a little tea leaf reading in play when observers try to predict court decisions based on justices’ questions, tone, and even body language. But the tea leaves in these cases look to be spelling out a message that’s encouraging for people who favor barring government from regulating speech.
If the Supreme Court lives up to expectations the result should be a First Amendment victory. That may mean that some people will find their speech suppressed on private platforms by those companies’ moderators. But it will also mean that people can move elsewhere to speak freely by different rules without worrying about interference from government lawmakers and regulators who might punish their choices using the power of the state.
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