Supreme Court must decide how the First Amendment applies to social media

The most important First Amendment cases of the internet age, which will be heard by the Supreme Court on Monday, could center on a single question: Are platforms like Facebook, YouTube, TikTok and X most like newspapers, malls or phone companies?

The two cases come before the court in politics because they involve laws in Florida and Texas aimed at protecting conservative speech by banning leading social media sites from removing posts based on the views they express.

But the excessive demand posed in the cases at hand transcends ideology. At issue is whether technology platforms have the right to free speech to make editorial judgments. Choosing the right analogy from the court’s precedents could decide the case, but none of the available analogies fit perfectly.

If the platforms are like newspapers, they can publish whatever they want without government intervention. If they are like private malls open to the public, they may be required to let visitors say what they want. And if they’re like phone companies, they have to relay everyone’s speech.

“It is not at all clear how our existing precedents, which predate the Internet age, should apply to major social media companies,” Justice Samuel A. Alito Jr. wrote. a 2022 dissent when one of the cases briefly reached the Supreme Court.

Supporters of the state laws say they promote free speech, giving the public access to all points of view. Opponents say the laws would trample on the platforms’ own First Amendment rights and turn them into cesspools of filth, hate and lies. A opposite shortThe liberal professors urged the justices to uphold the key provision of the Texas law despite the harm they say it would cause.

What is clear is that the court’s decision, expected in June, could transform the internet.

“It is difficult to overestimate the importance of these cases for freedom of expression online,” said Scott Wilkens, an attorney at the Knight First Amendment Institute at Columbia University, who submitted an application a friend-of-the-court briefing in support of neither side in the two cases, saying both sides had taken an extreme position.

The cases concern laws passed in Florida and Texas in 2021 that aim to ban major platforms from removing posts expressing conservative views. They differed in their details, but were both animated by frustration on the right, particularly the decisions of some platforms to ban President Donald J. Trump following the Jan. 6, 2021, attack on the Capitol.

In a statement Issued as he signed the Florida bill, Gov. Ron DeSantis, a Republican, said the law was intended to advance right-wing views. “If Big Tech’s censors enforce the rules inconsistently to discriminate in favor of Silicon Valley’s dominant ideology, they will now be held accountable,” he said.

Gov. Greg Abbott of Texas, also a Republican, said about the same thing when he signed his state law. “It is now the law,” he said, “that conservative views in Texas cannot be banned on social media.”

The two trade groups that challenged the laws — NetChoice and the Computer & Communications Industry Association — said the platforms had the same First Amendment rights as conventional news media.

“Just as Florida might not tell The New York Times which op-eds to publish or Fox News which interviews to air,” the groups say told the judges, “It may not tell Facebook and YouTube what content to distribute. When it comes to disseminating speech, decisions about which messages to include and exclude are made by private parties – not the government –.”

The states took the opposite position. Texas law, Ken Paxton, state attorney general, wrote in short“simply enables voluntary communication on the world’s largest telecommunications platforms between speakers who want to speak and listeners who want to listen, treating the platforms like telegraph or telephone companies.”

The two laws met different fates in the lower courts.

The Texas case involved a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit overturned a lower court’s order blocking state law.

“We reject the platforms’ attempt to waive free-wheeling censorship from the freedom of expression guaranteed by the Constitution,” Justice Andrew S. Oldham wrote for the majority. “The platforms are not newspapers. Their censorship is not a speech.”

In the case of Florida, the 11th Circuit largely defended a preliminary injunction blocking state law.

“Social media platforms exercise editorial judgment that is inherently expressive,” Judge Kevin C. Newsom wrote for the panel. “When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or penalize violations of their community standards, they are engaging in First Amendment-protected activity.”

Forcing social media companies to pass on virtually all messages, their representatives told the judges“would encourage platforms to spread all kinds of objectionable views – such as Russian propaganda claiming that the invasion of Ukraine is justified, ISIS propaganda claiming that extremism is justified, neo-Nazi or KKK texts that deny or support the Holocaust, and children encourage risky or unhealthy behavior, such as eating disorders.”

Supporting instructions are usually divided along predictable lines. But there was one notable exception. To the surprise of many, several prominent liberal professors submitted an application a short appeal to the judges to enforce a key provision of Texas law.

“There are serious, legitimate public policy concerns regarding the law at issue in this case,” the professors wrote, in part Laurens Lessig from Harvard, Tim Wu of Columbia and Zephyr lesson of Fordham. “They could lead to many forms of amplified hate speech and harmful content.”

But they added that “bad laws can set a bad precedent” and urged the justices to reject the platforms’ plea to be treated as news channels.

“To put it plainly: Facebook, Twitter, Instagram and TikTok are not newspapers,” the professors wrote. “They are not space-constrained publications that rely on editorial discretion in choosing which topics or issues to highlight. Rather, they are platforms for widespread public expression and discourse. They’re their own beast, but they’re much closer to a public shopping center or a railway line than they are to The Manchester Union Leader.

In an interview, Professor Teachout linked the Texas case the Citizens United decisionwhich struck down a campaign finance law that regulated corporate spending under the First Amendment.

“This case threatens to be yet another extension of companies’ right to speech,” she said. “It could become a Trojan Horse because the sponsors of the legislation are so unsavory. We should be very careful about expanding corporate speech rights just because we don’t like certain laws.”

Other professors, including Richard L. Hasen of the University of California, Los Angeles, warned the judges a brief support of the challengers that banning the platforms from removing political posts could have serious consequences.

“If Florida and Texas’ social media laws remain in place,” the letter said, “they would thwart platforms’ ability to moderate social media posts that risk undermining American democracy and inciting violence.”

The justices will consult two key precedents in an effort to determine where to draw the constitutional line in the cases to be argued Monday: Moody to NetChoiceNo. 22-277, and NetChoice vs. PaxtonNo. 22-555.

One of them, Pruneyard Mall vs. Robins from 1980 was a sprawling private shopping center in Campbell, California, whose 21 acres included 65 stores, 10 restaurants and a movie theater. It was open to the public but, as Judge William H. Rehnquist put it in his opinion for the court, “did not permit any publicly expressive activity, including the distribution of petitions, not directly related to its commercial purposes. ”

That policy was challenged by high school students who opposed a U.N. resolution against Zionism and were prevented from handing out pamphlets and requesting signatures on a petition.

Judge Rehnquist, who would be elevated to chief justice in 1986, wrote that state constitutional provisions requiring the mall to allow people to engage in expressive activities on its premises did not violate the center’s First Amendment rights.

In the second case Miami Herald vs. TornilloIn 1974, the Supreme Court overturned a Florida law that would have given politicians the “right to reply” to newspaper articles critical of them.

The case was brought by Pat L. Tornillo, who was dissatisfied with colorful editorials in The Miami Herald opposing his candidacy for the Florida House of Representatives. The newspaper said Mr Tornillo, a union official, had engaged in “shakedown statesmanship”.

Chief Justice Warren E. Burger, writing for a unanimous court in striking down the law, said the country was in the midst of “tremendous change.”

“Over the past half century,” he wrote, “a communications revolution has brought radio and television into our lives, the promise of a global community through the use of communications satellites, and the specter of a ‘wired’ nation. ‘

But Chief Justice Burger concluded that “the vast accumulation of unchecked power in the modern media empire” did not allow the government to usurp the role of editors in deciding what to publish.

“A responsible press is undoubtedly a desirable goal,” he wrote, “but press responsibility is not mandated by the Constitution, and like many other virtues it cannot be legislated.”