Can Florida and Texas, weaponized by conservative paranoia against Big Tech’s alleged liberal bias, destroy social media and free speech as we know it? After nearly four hours of arguments on the issue in the Supreme Court on Monday, the answer is surprisingly unclear. The justices took an unusual split as they grappled with the two laws at issue. Some people seemed genuinely concerned about the best approach to the whole mess at hand. And while uncertainty is fine and judges are not gods, the stakes are too high for the courts to screw this up.
What are the stakes? Florida and Texas are subverting fundamental First Amendment principles and turning the most popular website on the planet into an unusable morass of hate and extremism. If SCOTUS were to allow them to succeed, it would be a grave misfortune for free expression, free enterprise, and democracy itself.
The two laws at issue were inspired by Republican lawmakers’ beliefs that social media platforms discriminate against conservative voices. (They aren’t, but these lawmakers mistakenly believe that some anecdote is irrefutable evidence of a trend.) In response to right-wing outcry, Florida Gov. Ron DeSantis and Texas Gov. Greg Abbott signed a substantially similar bill limiting the platform’s ability to do so. To manage user-submitted content. Florida law prohibits platforms from hosting speeches about political candidates, disparaging political candidates’ platforms, or disparaging “journalism enterprises.” It also imposes strict “consistency” requirements on the moderation of all other content. Texas law goes further, prohibiting platforms from making any editorial choices based on a user’s “point of view.”
Both laws still require companies to notify users who are being “censored,” and users can appeal. Both allow individual users to sue and seek damages, which in Florida can reach up to $250,000 per day. Both broadly define “content moderation” to include removing, deprioritizing, or “shadow banning” a post. “Deplatforming” users. or attach comments to other people’s posts. Both are limited to the largest companies on the Internet.
These laws were made to sound harmless. They never are. Radical restrictions on content moderation will require platforms to host all kinds of offensive and rebellious speech, including election-subversive speech. Consider the meaning of Texas’ only one provision, the ban on “viewpoint discrimination.” Under this regime, Facebook could not remove posts that spread dangerous lies about voter fraud. YouTube failed to remove videos glorifying white supremacist brutality. Instagram failed to remove photos promoting terrorist propaganda. No company has been able to eliminate the commonplace biases: racist beliefs, anti-Semitic memes, and trash that taints everyone’s experience on the internet. They couldn’t even lower the priority of this content to protect users from it. So if a photo of your daughter’s wedding were suddenly replaced with a KKK recruitment video, users would almost certainly flee by the millions.
As a result, platforms have filed lawsuits in both states in response to the new law, arguing that the First Amendment protects their right to control the content on their websites. They broke Florida law, but not Texas law. However, SCOTUS blocked the law while they appealed. Their theory is persuasive. All platforms seek to foster some kind of “community” by removing or deprioritizing certain speech. By exercising this “editorial discretion,” they are performing their own expressive activities. Choosing which speech to highlight, hide or delete is fundamentally an expressive act, the platform says. In that sense, modern content moderation is indistinguishable from a newspaper’s right to publish or not publish particular columns. The Supreme Court has long held that publications, from newspapers to corporate newsletters, are entitled to “editorial control and judgment.” citizens united, on the other hand, made clear that the First Amendment grants corporations exactly the same rights as individuals and the press. These established free speech principles, social media companies argue, protect their right to moderate the speech of others as they see fit.
Paul Clement, a conservative lawyer who works for a major tech company, made these points eloquently on Monday. So did Attorney General Elizabeth Preloger, who works on the home side. Meanwhile, Florida Attorney General Henry C. Whitaker (clumsy) and Texas Attorney General Aaron Nielson (obtuse) did a dismal job of upholding state law. This disparity led the justices to dialogue primarily with themselves, a dialogue that revealed his two poles and a vague middle among the nine.
At one end of the spectrum, Justices Clarence Thomas and Samuel Alito defended the law and denounced the platform as a totalitarian bully. Alito suggested the term “content moderation” succumbed to “the Orwellian temptation to reclassify offensive behavior with seemingly bland terms” and dismissed it as a “euphemism for censors.” did. Thomas derided platforms that aim to “censor, as far as I know,” adding, “I’m not aware of any protected speech interest in censoring other speech.” (Courts have always held that excluding a message is itself a protected expression.) Mr. Thomas also argues that because the companies in question are large corporations, they are somehow protected by the First Amendment. He hinted that he was losing his rights. This is a strange argument from the Court’s proudest defender of business. The right to buy elections. Justice Neil Gorsuch also leaned in this direction.
At the other end of the spectrum, Chief Justice John Roberts and Justice Brett Kavanaugh summed up the case this way: The First Amendment prevents the government from censoring private companies. It does not prevent those companies from censoring their own users. Despite his recent turn to the far right, Kavanaugh has consistently defended the right of corporations to host any speech they want, which of course means eliminating any speech they want. While serving on the D.C. Circuit, he wrote an opinion opposing net neutrality in broad language that foreshadowed these cases. The government “cannot tell Twitter or YouTube what videos to post,” he argued. Or tell Facebook or Google which content he wants to prioritize. ” At SCOTUS, he has been careful to distinguish between state censorship and moderation of private platforms. And on Monday, he directly responded to Alito’s ridiculous Orwell reference, reminding his colleagues, “When I think of ‘Orwellians,’ I think of the state, not the private sector or individuals.”
Kavanaugh went all out on this topic. “The government’s exclusion of speech from the public square clearly violates the First Amendment,” the judge said. “If an individual or private entity decides what to include or exclude, that is generally protected. [as] Editorial Discretion. ” He also disputed Mr. Thomas’ suggestion that companies lose their free speech privileges once they reach a certain size or popularity. Kavanaugh read out one important precedent: “The concept that the government can limit the speech of some elements of society in order to increase their relative voice is not part of the First Amendment. It’s completely unrelated.” To obscure the point, he noted that previous generations complained that newspapers had “unchecked power to shape public opinion, which led to abuses of bias and manipulation.” But SCOTUS said “it is not enough” for the government to force newspapers to publish the speech of others. His implicit question: Why is the Internet different?
Everyone else was sitting in the middle. Notably, these ambivalent judges were fairly confident that these laws would violate the First Amendment when applied to platforms consisting of pure speech like Facebook and YouTube. It sounded like he had it. But they wondered whether it applied to voice in commercial services (think Etsy and Uber) as well as person-to-person communications like Gmail. Justice Elena Kagan asked whether the court could rule that the First Amendment protects “select news feeds” but not actual services like “Venmo, Dropbox, and Uber.” Kagan pointed out that these companies are already prohibited from discriminating on the basis of race or gender. Can states add perspective to the list? (Clement, a lawyer for a major technology company, said no, much to the judge’s surprise.)
Justice Amy Coney Barrett freely admitted, “This is a vast piece of legislation and I’m a little nervous.” She told Preloger that the case involved “a large amount of land” and that she was concerned about the “impact” it would have on future cases. Justice Ketanji Brown Jackson similarly complained that there was “a lot of uncertainty in the set of facts” and that “we don’t really know who we’re talking about.” Mr. Jackson appears to be deeply skeptical that the Florida law is unconstitutional, at least in “all of its applications,” raising the possibility that he will send the case back to the trial court for further fact-finding and a narrower ruling. Ta. Jackson and Barrett were more open to the possibility that Texas’ law could be more blatantly unconstitutional because it applied only to large speech-oriented platforms.
These concerns about decisions that are too broad or premature are understandable. But in the end, Mr. Kavanaugh is clearly correct in his candid view of this controversy. The state’s argument that it is somehow trying to legitimize free speech principles by forcing platforms to host more speech has plausible appeal. But their argument is meaningless because the First Amendment applies only to the government. The Constitution prohibits states from censoring speech. It does not give private companies permission to tell them what kind of talks they are obligated to host. Florida and Texas want to overturn this rule. The result will be bad laws and terrible policies, and the Internet will be dominated by rotten speech that no one wants. listen.
