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Another Case for Free Speech

Conflicted rulings in circuit courts anticipate a free speech debate on the Supreme Court.

Supreme Court of the United States
The Supreme Court on October 11, 2022, in Washington, D.C. (Kent Nishimura / Los Angeles Times via Getty Images)

God bless Texas. A case the state recently won at the circuit level is almost certainly headed to the Supreme Court. The Texas law, upheld, makes it illegal for social media giants to censor, delete, or otherwise interfere with viewpoints in what is known as content discrimination.

If the Supreme Court stands with the circuit court decision, that means Twitter, Facebook, YouTube, Instagram, et al., would no longer be able to blanket ban "ideas" such as the Hunter Biden laptop story, or ban users simply because of the point of view they support about vaccinations. The challenges are mighty, but the case is potentially a landmark one for free speech in the 21st century.

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The story actually begins in Florida, where the state tried to enact a law similar to Texas's, which protects politicians and journalists (sidestepping the complex question of which users fall into those categories) on social media from corporate censorship. The law, as in Texas, is narrowly focused on content or viewpoint censorship, the worst kind according to Supreme Court precedent.

Content discrimination seeks to outlaw speech based on the point of view it holds ("some vaccines are bad," "Biden is a dangerous president.") It is particularly injurious to the idea of free speech because it seeks to shut down dissent, to stifle debate, and to prevent things from even entering the marketplace of ideas. The cure for bad speech is more free speech, not censorship, the Court has long held, and what social media companies are doing at present is just the opposite. How can an idea be debated if one side is blocked?

The 11th Circuit Court struck down the Florida law, specifically stating that tech companies’ moderation decisions are protected by the First Amendment. This is in line with the social media giants' argument that they are best seen as a kind of newspaper, and newspapers of course have editors who decide all the time what articles get printed and which are left on the spike. The 11th Circuit said these decisions themselves are protected speech; "we conclude that social media platforms’ content-moderation activities — permitting, removing, prioritizing, and deprioritizing users and posts — constitute ‘speech’ within the meaning of the First Amendment.” Those rights to edit or censor precede any rights owed to the content itself.

And it does not matter if social media qualifies as a common carrier (as Florida claimed) or not. The 11th Circuit in Florida would have nothing of it, saying, “Neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier.”

As background, the uber-reason the First Amendment does not apply already to social media is of course that it is not run by the government and thus falls outside the 1A; only the government can formally "censor" and only the government is restrained by the 1A from interfering with free speech. Private companies may do what they like, and so when users join Facebook and click "Accept" to the Terms of Service, they circumvent the Constitution.

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Common carriers, on the other hand, are entities in this instance that provide wired and wireless communication services to the general public, such as the phone company. Because they are available to anyone to use, the law has long held they are subject to government regulation. Something similar separates highly regulated over-the-air broadcast networks from paid cable services, which is why Bill Maher can cuss on his show and NBC’s Lester Holt cannot.

Texas law holds that Twitter, et al., are akin enough to the phone company that they are subject to government regulation, i.e., a new law that prohibits Twitter from censoring content. No one would stand for a phone company, for example, that kicked users off its platform because they used dirty words in a phone call, or supported one candidate over another (Justice Clarence Thomas has written on the similarities between social media platforms and the phone company.) This sidesteps the 1A's limit to government. It is not a new argument and was also made in the Florida law, but Texas had its law heard by the more conservative 5th Circuit Court, which among other things reacted more strongly to the concern over viewpoint discrimination and preserving the marketplace of ideas. “To the extent it [the Texas law] chills anything, it chills censorship,” the court's opinion reads, emphasis in the original. The section of the Texas law at issue, it continues, “might make censors think twice before removing speech from the Platforms in a viewpoint-discriminatory manner.”

The opinion goes on to say: "We reject the Platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee. The Platforms are not newspapers. Their censorship is not speech. They’re not entitled to pre-enforcement facial relief. And HB 20 [the Texas law] is constitutional because it neither compels nor obstructs the Platforms’ own speech in any way." The idea is to compel platforms not to post or delete specific speech per se, but to allow speech.

The 5th Circuit opinion further does away with the argument that social media Platforms are like newspapers with their editors. The court explains that newspaper editors decide what to include given limited space. Platforms do the opposite, determining only what to exclude despite unlimited space. Platforms cannot cite the 1A to grant themselves unqualified license to invalidate laws that hinder them from censoring speech they don’t like; the censorship of broad ideas (ex. anti-vax) is not the exercise of editorial judgment.

As for the upheld Texas law, it seeks the following: A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on the viewpoint of the user or another person; the viewpoint represented in the user’s expression or another person’s expression; or a user’s geographic location in this state or any part of this state.

The last point grows out of concern that Facebook might block opinions within Texas by region to influence election results. It might be expanded nationally to ensure conservative voices from Texas have as much access to the platform as liberal voices from California. The main points of the argument drive home the idea that the stifling of speech in any venue has a deleterious effect on democracy, and that the expression of outrageous ideas should be controlled by the understanding of the audience ("other ideas"), not by corporate intermediaries panicked that their platform is being abused by lunatics, Russians, or people with whom they disagree.

So where do things stand? The Supreme Court, in an emergency declaration, stayed the Texas law given how the Florida law was rejected by the 11th Circuit and then approved for Texas by the 5th Circuit. Both cases will almost certainly be appealed to the Supreme Court, which will combine them, for the final word in whether or not social media can practice viewpoint discrimination.

Even a negative Supreme Court decision may not be the end of the issue. Almost Candidate Donald Trump said at a rally in Ohio in support of GOP midterm congressional candidates, “Another one of our highest priorities under Republican Congress will be to stop left-wing censorship and to restore free speech in America, which we do not have.” There are already 100 bills in state legislatures aimed at regulating social media content moderation policies. There is no question instances such as the Hunter Biden laptop incident, and purges of conservative commentators (to include Donald Trump) have driven much of the need to control content moderation that spills over into viewpoint discrimination.

Given the role of social media and its reach into American society, and the polarized opinions on how it should work, it is possible that the Court's decision in this case will stand alongside the other giant First Amendment struggles in determining how Americans may speak to one another.

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