If privately owned social media platforms have language policies you don’t like, you should: a) publicly reprimand them while finding other means to spread your message; or b) use the coercive power of the government to impose various policies of your choice? State officials in Florida and Texas have tried the second approach, and it looks like the U.S. Supreme Court is about to give them a spanking.
The rattle is a weekly newsletter from JD Tuccille. If you care about government excesses and tangible threats to everyday freedom, this is for you.
Great technology and muzzled speech
In recent years, big tech companies have been criticized for imposing arbitrary and ideologically motivated restrictions on free speech. Platforms have often responded to government pressure, as revealed by the Twitter Files and Facebook Files. Government agencies have been slapped by the courts for their censorship shenanigans. But platforms have their own editorial biases, and whatever we may think of them, they have the right to make their own rules, for better or worse.
Some government officials disagree. In 2021, Texas passed a law prohibiting large social media platforms from “blocking, banning, removing, deplatforming, demonetizing, disempowering, restricting, denying equal access or visibility, or otherwise discriminating against expression.” This was a good defense of freedom of expression in the context of a publicly owned forum, but “blatantly unconstitutional,” as Reason‘ Jacob Sullum pointed out when he forced private organizations to exercise discretion over their properties. Florida passed an even broader free speech regulation that was quickly scaled back by the courts.
“Platforms are private businesses, 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 vested rights to force a platform to allow you to contribute or consume content on social media.”
Challenged by NetChoice, a trade group that favors free enterprise and free expression, and the Computer & Communications Industry Association, both bills came before the U.S. Supreme Court this week as Moody vs. NetChoice AND NetChoice vs. Paxton. If first impressions are correct, it appears the nation’s high court is poised to largely echo Judge Newsom.
Skeptical judges
“Justice Elena Kagan was one of many judges to question the constitutionality of the Texas and Florida laws,” noted Amy Howe for SCOTUSblog. “Why?” she asked [Florida Solicitor General Henry] Whitaker, “isn’t this a classic violation of the First Amendment” when the state prevents platforms from making their editorial judgments.”
Kagan is one of the court’s left-leaning justices, but her concerns are shared by many of her right-wing colleagues.
“Judge Brett Kavanaugh also seemed unconvinced,” Howe commented. “He noted that the First Amendment protects against government suppression of free speech” (an observation echoed by Chief Justice John Roberts) and that the Supreme Court has a number of cases “highlighting editorial control as fundamentally protected by the First Amendment.” Amendment.'”
Howe added, “Judge Amy Coney Barrett seemed to agree with Kavanaugh.”
Justices Thomas and Alito seemed more likely to leave the laws in place, but the back-and-forth before the court left the distinct impression that the majority views both the Texas and Florida laws as violations of the First Amendment.
Positive omens for free expression
“The oral arguments suggest that a clear majority of the justices believe that these laws violate the First Amendment rights of social media providers,” noted George Mason University law professor Ilya Somin. “I think it’s clear that there are at least five or six justices who accept the distinctions made by Roberts and Kavanaugh [between state and private action]and therefore they are inclined to rule against Florida and Texas on this basis.”
Both Somin and Howe point out that several justices are skeptical of the lower court’s opinion against the Florida law, not because it is more First Amendment-friendly than its Texas counterpart, but because it applies to much online activity that is not all protected by the First Amendment.
“In the Florida case, several judges suggested that they might not be able to uphold the lower court’s ruling against the law because that state’s law is so broad that it could cover websites that are not at all expressive in nature, like Uber or Etsy”, comments Somin. “The social media company plaintiffs have filed a facial challenge to the law, which may require them to show that the law is unconstitutional in all or most of its applications.”
This could force plaintiffs challenging the Florida law to amend their complaint so that it is limited to editorial discretion over expressive activity.
Separation between word and state
Joining the fight over the Florida and Texas laws are numerous third parties, many of whom have filed amicus briefs in the case. Among these groups is the Foundation for Individual Rights and Expression (FIRE), which takes a traditional civil libertarian position in favor of keeping government out of the business of regulating, enforcing, or suppressing free speech.
“We argued that it is unconstitutional for Florida and Texas to prohibit large social media platforms from moderating content according to their standards,” Talia Barnes wrote for FIRE. “For similar reasons, FIRE has also filed an amicus brief in another case that will be considered by the Court this term, Murthy v. Missouri, surrounding government “jawboning,” or the pressure on private social media platforms to suppress and remove unfavorable views from the platform. In both NetChoice cases and in MurthyWe ask the Court to keep the government away from online content moderation.”
Of course, there’s more than a little tea leaf reading at play when observers try to predict court decisions based on judges’ questions, tone, and even body language. But in these cases the tea leaves seem to express an encouraging message to people who favor preventing the government from regulating free speech.
If the Supreme Court lives up to expectations, the result should be a victory for the First Amendment. This could mean that some people will have their speech suppressed on private platforms by those companies’ moderators. But it will also mean that people will be able to move elsewhere to speak freely under different rules without worrying about interference from legislators and government regulators who might punish their choices using state power.