From The Wall Street Journal:
The Supreme Court sounded dubious Monday of state laws requiring online platforms such as Facebook and YouTube to publish nearly all user content, although several justices suggested that the ability to remove noxious social-media posts should not mean tech companies are free to block personal communications such as Gmail or chat messages.
The court heard nearly four hours of argument to determine the constitutionality of a pair of state laws that seek to prevent online platforms from moderating users’ posts. By the end, it seemed clear the court was unwilling to accept either side’s conception of what social media is: an edited publication entitled to full First Amendment freedoms; or a common carrier like a phone company that must transmit information without discriminating among its users.
“So you say this is just like a newspaper, basically. It’s like the Miami Herald,” Justice Samuel Alito told Paul Clement, the lawyer representing the industry. “And the states say no, this is like Western Union. It’s like a telegraph company” that just delivers messages, he said.
“I look at this and I say it’s really not like either of those,” Alito said.
In 2021, when Donald Trump was banned from Twitter (now known as X) after the Jan. 6 Capitol riot and conservative activists asserted their views were being suppressed by social-media sites, Florida and Texas passed laws requiring the platforms to post nearly all user content without regard to the viewpoints expressed.
The moves set off battles in lower courts, with judges reaching conflicting conclusions on whether the state regulations were lawful. Together, the two cases could set important ground rules for free-speech protections online.
Trade groups representing Meta, Google and X sued the states, saying such requirements infringe on their First Amendment rights to decide what is said on their websites. To require viewpoint neutrality meant that “if we have suicide prevention [content], we have to have suicide promotion,” Clement said. “That should be a nonstarter.”
Several justices expressed sympathy with that argument but observed that ruling against the states might also entitle the internet companies to police what messages are transmitted via other services they provide, such as individual email accounts or direct messaging.
Justice Amy Coney Barrett asked Clement how the court could write an opinion saying state restrictions were unconstitutional regarding news feeds on Facebook and YouTube, but not when it came to services such as the shopping platform Facebook Marketplace “or Gmail or DMs.”
Clement didn’t want to give ground on that point, but U.S. Solicitor General Elizabeth Prelogar, who also argued against the state laws, suggested there was a legitimate distinction between social-media sites focused on expression and those that were more akin to a service.
Different rules could apply to different functions a company performs, said Prelogar, representing the Biden administration. A railroad such as Amtrak is a common carrier and can’t discriminate among passengers. But if Amtrak publishes a magazine passengers can read during their travel, it would be entitled to First Amendment protection for the editorial decisions the company makes over what to include, she said.
Arguing in the Texas case, Prelogar agreed that social media didn’t fit neatly into Supreme Court precedents. “It’s not necessary here to try to figure out how the First Amendment applies to new technology in general or to every possible website or the internet in particular,” she said.
She recommended the court rule narrowly against what she said was a singular defect in the Texas law: the state’s aim of amplifying some voices on the platforms “by suppressing the platform’s own protected speech.”
Not so said the Texas solicitor general, Aaron Nielson. The platforms could say anything they want, even criticize user posts, he said. Users were free to block unwanted content, he said. “All that’s left is voluntary communications between people who want to speak and people who want to listen,” he said.
. . . .
Chief Justice John Roberts, disputing the idea that the platforms hold a monopoly over public discourse, said Texas had gotten the First Amendment backward.
“What the government’s doing here is saying, You must do this, you must carry these people; you’ve got to explain if you don’t. That’s not the First Amendment,” he said. Rather than impose requirements on private parties, the First Amendment bars the government from telling them what they must or can’t say, Roberts said.
Among other provisions, the Texas law prohibits platforms from discriminating against users based on their viewpoints. Justice Elena Kagan asked if the platforms claim to have the categorical right to ban users for what they believe—to decide, for instance, that when it comes to antisemites “we’re not even going to let them post cat videos.”
Clement said yes. If “you are a notorious antisemite, we do not want you to participate in this conversation,” he said.
The cases, Moody v. NetChoice and NetChoice v. Paxton, are the latest in a series the court has used to project the First Amendment into the online world.
Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)
Oh, so much wrong here.
First, that red herring about suicide prevention? These platforms ALREADY allow suicide encouragement content – by such groups as the “Medical Assistance in Dying” euthanasia bunch in Canada. (Several such advocacy groups in the US, too, to enact similar laws.)
The final statement (in this post) by Clement should be a red flag, too – the assertion that they can completely shut anyone out of the public square for saying anything that they don’t like.
The entire idea that these platforms are not either a) publishers, or b) common carriers has always been specious. The ability to suppress any unwanted view makes them publishers – and therefore liable for what they do allow through (the law absolving them is, quite obviously in my opinion, not Constitutional, as it essentially provides a private person with the immunity given only to government actions).
“The public square” is, through a century and a half of definitional contortions, what is made available to the public by government and government units. However much the Zuckerbeast wants to have his own currency and be the government of the Metaverse… he can’t and he isn’t (not for lack of ambition). Private actors in private spaces are not bound by the restrictions on government restrictions on speech, except insofar as those private actors invoke specific government benefits intertwined with public benefits, like walking-mall tax-incentive-district redevelopments and deputizing mall cops as sheriff’s deputies so they can arrest unruly teenagers and opening company towns in southern Alabama.
Now whether that series of government-developed-and-subsidized tubes that became “teh internets as we knows it” is a sufficient intrusion on private spaces within teh internets to justify gummint regulation (either must-carry or cannot-carry, and isn’t that an interesting problem) is a fact question. And if there’s one thing that the Supreme Court is not supposed to do and proclaims that it never does, it is weigh evidence and find facts in cases on appellate review.†
The key issue is the formalist distinction between “prior restraint” and “limited post-speech consequences thereafter.” The latter is why we have defamation law, and the “inciting violence” exception, and the Snepp doctrine, among others. It’s why we can have hate-speech enhancements to criminal penalties… but not actual crimes of “hate speech.”
The real error that Florida (in particular) made here is that its provisions are criminal and indivisible; the Texas provisions are at least arguably divisible, so (in theory) the Court could strike just the criminal portions. But we’re getting into neepery here when neepery is unneeded: The purpose of these restrictions was to energize and mobilize “the base,” not to actually do anything related to the speech itself. And that is precisely why the restrictions are unconstitutional: They are compelled speech in a context favoring private parties, not public interest (and, arguably, constitute a breach of the Article V oath of office of each government official who joined in, but that’s definitely far afield and even more neepery).
† Regardless of one’s political or other inclinations, it’s disturbingly easy to find counterexamples in every decade right back to and even before Marbury.
Prelogar is a good lawyer. Even when I don’t agree with her.
I’m interested in this, it’s neither, now what shall we do conclusion. Looking forward to seeing how this shakes out.