By: John Schengber, Vol. 21 Staff Writer
In recent decisions from the circuit courts — the second-highest level of federal courts behind the Supreme Court — judges disagree as to whether states can prohibit social media companies from moderating content on their platforms. The Firth Circuit Court of Appeals evaluated a Texas law, and the Eleventh Circuit Court of Appeals evaluated a Florida law. Both state laws prohibit a platform like Facebook from moderating its content based on the viewpoint of the content, such as by removing content it deems hate speech or misinformation. In evaluating the two state laws, the Fifth and Eleventh Circuit Courts came out differently on the issue, and an important disagreement between circuit courts typically tees up a Supreme Court showdown. At the Supreme Court, the case will test the Justices’ commitment to protecting corporate speech.
Since the 1970s and 1980s, Supreme Court decisions such as Buckley v. Valeo, First National Bank of Boston v. Bellotti, and Citizens United v. FEC have increasingly placed corporate speech on equal footing with other forms of protected expression. The thinking, according to the Courts that made those decisions, was that legislatures and courts cannot dampen corporate speech merely to protect the speech of others. If spending is speech, according to Buckley, and corporations are people, according to Citizens United, then spending by corporations towards political campaigns and other areas of public discourse is speech that the Government cannot restrict simply because the “speaker” is a corporation. (Economists point to a connection between these decisions favoring unrestrained corporate speech and subsequent Republican electoral victories).
But now much of corporate power, and corporate speech, comes from Silicon Valley, where Facebook, Google, and Twitter roost, turning corporate power blue. Meanwhile, as social media platforms have become hotbeds of radicalization, misinformation, and hate speech, the internet giants face pressure to censor their users, including conservative politicians like Donald Trump. Conservative legislatures and governors in Texas and Florida, reacting to the perception that the Silicon Valley magnates are selectively censoring conservative speech, enacted laws that prohibit social media companies from moderating their users’ speech.
The Statutes and the Circuit Split
Both the law in Florida, S.B. 7072, and the law in Texas, H.B. 20, seek to limit social media companies’ ability to moderate platform users’ speech or remove users from platforms based on their speech. The plaintiffs, led by NetChoice LLC, are a group of telecommunications trade associations that represent the large social media companies. They filed preliminary injunctions against each statute in the appropriate courts—the U.S. District Courts for the Northern District of Florida and the Western District of Texas—asking the courts to stop the laws before they go into effect on the grounds that the laws violate the platforms’ First Amendment free speech rights. The cases were then appealed to the Eleventh Circuit and the Fifth Circuit.
In both cases, NetChoice made two important arguments. First, social media companies are private actors. Second, they are publishers who maintain editorial discretion. Because the First Amendment only applies to state actors, not private actors, NetChoice argued that it is not a First Amendment violation of any sort when the companies choose to censor their platforms’ users. Further, because the First Amendment prohibits governments from compelling editorial publishers—like newspapers or internet sites—to publish certain things, NetChoice argued that the statutes violate the First Amendment by compelling private actors to speak in certain ways when it forces them to support all users’ content.
Texas and Florida, meanwhile, argued that social media sites can be regulated consistent with the First Amendment because social media sites are either common carriers, like utility companies or internet service providers, or public forums, like public parks or sidewalks. In either setting, the states argue, it violates the First Amendment for social media companies to moderate users’ content, and, accordingly, it is within states’ powers to pass laws prohibiting such content moderation.
The Eleventh Circuit found that some, but not all, of the Florida law’s provisions violate the First Amendment. Importantly, the Court rejected Florida’s arguments that the platforms were common carriers, and instead found that the First Amendment protects social media companies’ right to moderate its own speech. The Fifth Circuit differed remarkably, finding that social media companies are common carriers and that the Texas law does not violate the First Amendment because it doesn’t regulate speech, it protects other people’s speech. Both cases await the Supreme Court’s decision whether to take the controversy this term.
Principles at Stake for The Supreme Court
The NetChoice cases, present the Supreme Court with the opportunity to reshape the First Amendment landscape to fit the modern era. Texas’s and Florida’s argument that social media companies are essentially common carriers and/or public forums, if accepted by the Court, would expose the platforms to a deluge of regulatory oversight. Such regulation would likely have several effects. First, it could turn the platforms into cesspools of hate speech and misinformation, because the oversight requested by the conservative states would actually prevent platforms from removing what they deem harmful. Second, the regulatory regime would give smaller platforms, like Parler, Gab, and Truth Social, greater opportunity to compete because they would be exempt from the regulations due to their smaller user base. The combined result is a more fragmented cyberspace, where platforms and hosts have less control over the destiny of their own creation.
But the underlying issue, besides the fate of the internet, is the Court’s approach to corporate speech and power. In its campaign finance cases, the Court exclaimed that the Government cannot limit corporations’ ability to speak just because corporations’ massive capacity for speech—measured in dollars—might drown out others’ ability to speak. Now, state governments seek to limit corporate speech social media platforms’ editorial discretion) in order to uplift the speech of others (social media users who want to engage in disfavored speech). If the Court takes up the issue, it will be forced to reconcile the two approaches. Could this lead the Court to reconsidering its precedents that so elevated corporate speech? I doubt it. I fear, instead, that the Court will manage to justify regulations on corporate speech when those regulations involve social media companies moderating their platforms, while, on the other hand, continuing to strike down regulations on corporate speech when the regulations involve, say, limits on corporate spending towards political campaigns. In doing so, the Court will miss an opportunity to tamp down on corporate speech for the benefit of the public interest.