San Antonio Express-News (Sunday)
So, who’s trying to protect free speech?
The Supreme Court heard arguments last week in a case that could set a Texas-size precedent about First Amendment rights.
It all started with a bill passed by the state Legislature in 2021 to regulate social media platforms. It requires those with at least 50 million active users to report and justify any content they removed, to disclose their content-regulation policies and to create a complaint system regarding moderation. That set the stage for lawsuits against the companies over content moderation policies, which now have reached the high court.
Texas lawmakers had two goals in passing the measure, House Bill 20:
1. Punishing Facebook, Twitter, YouTube and others for banning President Donald Trump after his supporters stormed the Capitol building
Jan. 6, 2021, to try to prevent certification of the 2020 election results.
2. Acting on lawmakers’ presumption that the big social media companies have their thumbs on the scale against conservative voices.
“It is now law that conservative viewpoints in Texas cannot be banned on social media,”
Gov. Abbott said (in a video posted via social media on Facebook) when he signed the bill. He went on to claim that, “In Texas, we will always fight for your freedom of speech.”
The irony is that HB20 is seen by many as one of the most egregious attacks on free speech in our time. And that’s how we got to NetChoice & CCIA v. Paxton, the case heard last week.
Confused lawmakers?
The trade groups that brought the challenge to the Supreme Court — NetChoice and Computer & Communications Industry Association, or CCIA — represent a coalition of technology companies. They argue that government attempts to regulate their content moderation is a clear First Amendment violation. Beyond that, they say, they also have a business and social responsibility to regulate speech on their platforms.
To combat the amplification of propaganda from foreign powers, for example, or messages that would be harmful to children’s health, NetChoice and CCIA argue they must be allowed to impose editorial choices over content. And, they say, it’s not the role of a government like the state of Texas to tell private companies how to set their editorial policy.
After oral arguments Feb. 26, CCIA President Matt Schruers said Texas lawmakers are confused about their roles.
“The arguments today showed that Florida and Texas are attempting to push unconstitutional laws that get the government’s role exactly backwards,” he said. “The First Amendment protects individuals and businesses from the government, not the other way around. There is nothing more Orwellian than the government demanding what viewpoints are distributed in the name of free expression.”
The typical defender of First Amendment rights starts from
the uncomfortable premise that individuals and private institutions have wide latitude to say whatever they want, however wrong-headed they may be. The First Amendment does not limit, determine or compel private actions or speech except when it incites violence, hate, certain kinds of exploitation, or creates danger — like crying fire in a crowded room.
What the First Amendment does limit, however, is actions of the government. Government is not supposed to determine what private individuals and institutions may believe and express.
Newspapers do it
The analogy is to a newspaper, about which I have strong opinions. A newspaper may knowingly publish terrible ideas (because, duh! Obviously, I’m on here). It may likewise
refuse to publish others’ opinions. It may “deplatform” or ban any political leader it wants by ignoring their opinion pieces or refusing to carry their letters to the editor. There’s well-established precedent for such First Amendment treatment of media companies.
When Twitter, Facebook and others de-platformed Trump after the Jan. 6 insurrection, that choice was theirs to make. There are other ways for
Trump to get his message out, including setting up a competing social media company, which he did.
To force a media entity to carry certain content, or similarly force it to not carry other content, is interference in a private entity’s rights under the First Amendment.
“A business saying we don’t want to host Nazi Party candidates, foreign misinformation
or dangerous teen internet challenges is exercising its First Amendment rights,” Schruers said. “If people don’t like the rules of one site, they can vote with their feet or their mouse and choose a service with terms of use that are more to their liking.”
I have followed this story from the beginning and basically agree with that. Whatever happened to the strict constitutionalist view that governments are the ones we should limit and that private companies and citizens are the ones we should basically leave alone?
The other sides
Still, it’s far from clear how the court will rule.
Justice Samuel Alito — a member of the court’s conservative majority — indicated in commentary in 2022 that he didn’t find the issues as clear
cut as I do, that the problems of social media companies are new and unprecedented, and that the newspaper analogy was not the only way to view the rights to regulate speech.
A compelling argument in favor of the Texas law is that private businesses in a shopping mall, which is understood as a public space, do have to allow most speech they find undesirable and even hateful as long as it is not inciting violence or creating a danger. If the social media companies are like a mall — privately owned but understood as public space — then they might have to allow all kinds of speech, however distasteful.
Finally, a liberal view filed with the court from the American Economic Liberties Project is skeptical of allowing social media companies a blanket
First Amendment right to determine how they do or do not present content, without the ability of states to regulate them.
The precedent of striking down Texas’ HB20 and a similar Florida law would put too much power in the hands of these companies, it argues.
That perspective stems from the view that the concentrated power of social media companies is itself a threat to society. The project’s intention in defending Paxton and HB20 is to preserve the government’s ability to regulate big companies.
I mostly side with the social media companies on this one but you can see both conservative and liberal critiques of their view have some merit.
The Supreme Court is expected to rule on the issue by June.