The most important First Amendment cases of the internet era, to be heard by the Supreme Court on Feb 26, may turn on a single question: Do platforms like Facebook, YouTube, TikTok and X, formerly Twitter, most closely resemble newspapers or shopping centres or phone companies?
The two cases arrive at the court garbed in politics, as they concern laws in Florida and Texas aimed at protecting conservative speech by forbidding leading social media sites from removing posts based on the views they express.
But the outsize question the cases present transcends ideology. It is whether tech platforms have free speech rights to make editorial judgments. Picking the apt analogy from the court’s precedents could decide the matter, but none of the available ones is a perfect fit.
If the platforms are like newspapers, they may publish what they want without government interference. If they are like private shopping centres open to the public, they may be required to let visitors say what they like. And if they are like phone companies, they must transmit everyone’s speech.
It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, Justice Samuel Alito wrote in a 2022 dissent when one of the cases briefly reached the Supreme Court.
Supporters of the state laws say they foster free speech, giving the public access to all points of view. Opponents say the laws trample on the platforms’ own First Amendment rights and would turn them into cesspools of filth, hate and lies. One contrarian brief, from liberal professors, urged the justices to uphold the key provision of the Texas law despite the harm they said it would cause.
What is clear is that the court’s decision, expected by June, could transform the Internet.
It is difficult to overstate the importance of these cases for free speech online, said Mr Scott Wilkens, a lawyer with the Knight First Amendment Institute at Columbia University, which filed a friend-of-the-court brief in support of neither side in the two cases, saying each had staked out an extreme position.
The cases concern laws enacted in 2021 in Florida and Texas aimed at prohibiting major platforms from removing posts expressing conservative views. They differed in their details but were both animated by frustration on the right, notably the decisions of some platforms to ban President Donald Trump after the Jan 6, 2021, attack on the Capitol.
In a statement issued when he signed the Florida bill, Governor Ron DeSantis, a Republican, said the law was meant to promote right-leaning viewpoints. If Big Tech censors enforce rules inconsistently, to discriminate in favour of the dominant Silicon Valley ideology, they will now be held accountable, he said.
Governor Greg Abbott of Texas, also a Republican, said much the same thing when he signed his state’s bill. It is now law, he said, that conservative viewpoints 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 outlets.
Just as Florida may not tell The New York Times what opinion pieces to publish or Fox News what interviews to air, the groups told the justices, it may not tell Facebook and YouTube what content to disseminate. When it comes to disseminating speech, decisions about what messages to include and exclude are for private parties – not the government – to make.
The states took the opposite position. The Texas law, Ken Paxton, the state’s attorney general, wrote in a brief, just 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.
Supporting briefs mostly divided along the predictable lines. But there was one notable exception. To the surprise of many, some prominent liberal professors filed a brief urging the justices to uphold a key provision of the Texas law.
There are serious, legitimate public policy concerns with the law at issue in this case, wrote the professors, including Lawrence Lessig of Harvard, Tim Wu of Columbia and Zephyr Teachout of Fordham. They could lead to many forms of amplified hateful speech and harmful content.
But they added that bad laws can make bad precedent and urged the justices to reject the platforms’ plea to be treated as news outlets.
To put a fine point on it: Facebook, Twitter, Instagram and TikTok are not newspapers, the professors wrote.
They are not space-limited publications dependent on editorial discretion in choosing what topics or issues to highlight. Rather, they are platforms for widespread public expression and discourse. They are their own beast, but they are far closer to a public shopping centre or a railroad than to The Manchester Union Leader.
In an interview, Teachout linked the Texas case to the Citizens United decision, which struck down a campaign finance law regulating corporate spending on First Amendment grounds.
This case threatens to be another expansion of corporate speech rights, she said. It may end up in fact being a Trojan horse, because the sponsors of the legislation are so distasteful. We should be really wary of expanding corporate speech rights just because we don’t like particular laws.
Other professors, including Richard Hasen of UCLA, warned the justices in a brief supporting the challengers that prohibiting the platforms from deleting political posts could have grave consequences.
Florida’s and Texas’ social media laws, if allowed to stand, the brief said, would thwart the ability of platforms to moderate social media posts that risk undermining US democracy and fomenting violence. NYTIMES
