The Supreme Court must slam the dangerous door opened by Texas and Florida

The Supreme Court has now heard oral argument in two of the most important free-speech and social media cases it has ever considered.

At issue is whether Texas and Florida may pass laws regulating what content the platforms may remove. The answer depends on how you frame the free speech question. Is this a case about whether the platforms can determine what we can say on social media? Or is it about whether the government can decide what we can say online? If the latter, social media speech would become a huge exception to the First Amendment.

It would be a disaster if the government could regulate online speech. Conservative states like Texas and Florida would force the platforms to allow racist, sexist and anti-semitic harassment — the goal of the Texas law, which bars platforms from taking down speech based on its “viewpoint.” (The Florida law bars de-platforming candidates for office, like former President Donald Trump.)

It’s easy to imagine liberal states following suit, imposing restrictions on speech they don’t like — for example, by saying whatever they deem hate speech must be banned.

This is not a recipe for freedom of expression.

In fact, we have the First Amendment precisely to avoid this kind of scenario. As Chief Justice Roberts suggested during the argument, “our first concern should be with the state regulating what we have called the modern public square.”

Skeptics would say that Texas and Florida lawmakers are defending free speech. In fact, they are dictating what speech the platforms may allow.

Let me be clear: It’s perfectly reasonable to be skeptical of the social media platforms’ ability to strike exactly the right balance between free speech and online safety and civility. I’ve been advising a number of the platforms on free-speech issues for years now, and the truth is that there is no single best answer. What’s more, the platforms are businesses, so no matter how hard they might try to strike the correct balance, the profit motive can’t be entirely ignored.

I also want to be clear that there are some kinds of government regulation that should absolutely apply to social media platforms — and that the First Amendment shouldn’t disallow. They should be governed by antitrust laws. They should be governed by truth-in-advertising laws. They should be responsible for the safety of kids on their platforms.

Yet all these appropriate forms of governmental oversight shouldn’t distract us from the underlying question raised by the cases: whether states and the federal government should be able to pass laws telling the companies what their users can and can’t say.

This flies in the face of the basic idea behind the First Amendment. Although it’s easy to forget it, the basic idea behind freedom of speech is not that you should always be able to say anything you want, anytime, to anyone. You can’t say anything you want on the job: There are rules about that. You can’t say anything you want to friends: There may be consequences. No, the basic idea behind the First Amendment is that the government can’t tell you what to say.

This distrust of the government as arbiter of the truth isn’t right wing or left wing. Justices as different as Sonia Sotomayor and Brett Kavanaugh seemed to understand that lawmakers shouldn’t be allowed to choose what speech can or can’t be allowed.

Protecting free speech is the universal common sense of liberal constitutional democracy. Sometimes the party you like will be empowered; sometimes the other party will be. By protecting free speech, we assure that neither side can suppress the speech it doesn’t like.

Allowing Texas and Florida to force the platforms to carry speech their executives think is harmful opens the door to fullon governmental content regulation.

Some of the justices clearly share the public’s skepticism of the platforms. That’s fine, provided they remember that the very essence of their job is to keep the government out of the game of regulating expression. This is one of those cases that will matter for years to come. Keeping speech free is the best answer.