Can Florida and Texas weaponize conservative paranoia about Big Tech’s alleged liberal bias to destroy social media and free speech as we know it? The Supreme Court debated the question for nearly four hours on Monday, but the answer was disturbingly unclear. The justices were unusually divided in their approach to the two controversial laws. Some people seem genuinely confused about the best way to deal with the whole mess in front of them. While uncertainty is good—judges are not gods—the stakes are too high for the courts to mess things up.
What are these stakes? Florida and Texas are seeking to subvert the fundamental principles of the First Amendment and turn the most popular website on earth into an unexploitable quagmire of hate and extremism. If the Supreme Court allowed them to succeed, it would be a grave misfortune for free speech, free enterprise, and democracy itself.
The two controversial laws were inspired by Republican lawmakers’ belief that social media platforms discriminate against conservative voices. (They didn’t, but these lawmakers mistook anecdotes for irrefutable evidence of a trend.) In response to the right-wing outcry, Florida Gov. Ron DeSantis and Texas Gov. Gray Abbott signed into law substantially similar legislation limiting the ability of platforms to moderate content posted by users. Florida law prohibits platforms from censoring any speech about a political candidate, deplatforming a political candidate, or disadvantaging any “news enterprise.” It also imposes strict “consistency” requirements on all other content moderation. Texas law goes a step further, prohibiting platforms from making any editorial choices based on a user’s “views.”
Both laws require companies to notify users who end up being “censored” and allow them to appeal. Both allow individual users to sue and collect damages—up to $250,000 per day in Florida. Both define “content moderation” broadly, including removing, deprioritizing, or “shadowbanning” posts; “deplatforming” users; or commenting on others’ posts. Both are limited to the largest companies on the Internet.
These laws sound innocuous enough. They are anything but. Their radical restrictions on content moderation will require platforms to host all kinds of abhorrent and objectionable speech (including election subversion). Consider the impact of Texas’s prohibition on “viewpoint discrimination.” Under this system, Facebook cannot remove posts that spread dangerous lies about voter fraud. YouTube cannot remove videos celebrating white supremacist atrocities. Instagram cannot remove photos that promote terrorist propaganda. No company can eradicate ordinary bigotry — the racist rhetoric, the anti-Semitic memes, the garbage that pollutes everyone’s experience on the internet. They can’t even de-prioritize this content to protect users from it. That means millions of users are almost certain to flee when their daughter’s wedding photos are suddenly replaced by a Ku Klux Klan recruitment video.
That’s why, in response to the new laws, the platforms filed lawsuits in both states, arguing that the First Amendment protects their right to moderate content on their sites. They violated Florida law but not Texas law — although the Supreme Court blocked that on their appeal. Their theory is compelling. Every platform attempts to foster some kind of “community” by removing and deprioritizing certain speech. By exercising this “editorial discretion,” they themselves participate in representation. Choosing which speech to enhance, obscure or remove is fundamentally an expressive exercise, the platforms say. In this sense, modern content moderation is no different from a newspaper’s right to publish or not publish a particular column. The Supreme Court has long held that publications, from newspapers to corporate newsletters, have the right to “editorial control and judgment.” Citizens UnitedAt the same time, clarify that the First Amendment gives corporations exactly the same rights as individuals and the media. Social media companies claim that these established free speech principles protect their own right to moderate the speech of others as they see fit.
Paul Clement, a conservative lawyer who works for big tech companies, made these points eloquently on Monday. Deputy Attorney General Elizabeth Prelogar also stood to the side of the podium to express her opinion. On the other hand, Florida Deputy Attorney General Henry C. Whitaker (bumbling) and Texas Deputy Attorney General Aaron Nielson (retarded) defended their states’ The legal side is doing a terrible job. This disparity leaves the justices largely engaged in a self-conversation that reveals two poles and a mushy middle between nine extremes.
A panel of Justices Clarence Thomas and Samuel Alito defended the law and disparaged the platforms as totalitarian bullies. Alito argued that the term “content moderation” succumbed to the “Orwellian temptation to reclassify offensive conduct in seemingly bland terms” and dismissed it as “a euphemism for censors.” Thomas scoffed at the platforms for “censoring, to my knowledge,” adding, “I’m not aware of any protected speech interest in censoring other speech.” (Courts have long held that excluding information is itself protected expression.) Thomas also The implication is that because the companies involved in the case are so large, they have somehow lost their First Amendment rights — a bizarre argument from the court’s proudest corporate defender. ‘Buying the right to vote. Justice Neil Gorsuch also leaned in this direction.
Chief Justice John Roberts and Justice Brett Kavanaugh, on the other hand, boiled the case down to this: The First Amendment prohibits the government from censoring private companies; it does not prevent those companies from censoring their own users. Kavanaugh, despite his recent shift to the far right, has been a staunch advocate for the right of corporations to host any speech they want, which of course also means excluding any speech they want. While on the D.C. Circuit, he wrote an opinion opposing net neutrality that foreshadowed the cases in broad terms: He claimed that the government could not “tell Twitter or YouTube which videos to post; or tell Facebook or Google which videos to like. content.” At the Supreme Court, he carefully drew a distinction between state censorship and moderation by private platforms. On Monday, he responded directly to Alito’s ridiculous Orwellian reference, reminding his colleagues: “When I think ‘Orwellian,’ I think of the state, not the private sector, not private individuals.”
Kavanaugh captures the subject as best he can. “When the government prohibits speech in public spaces, it clearly violates the First Amendment,” the judge said. “When a private person or private entity decides what to include and what to exclude, there are generally protections [as] Editorial discretion. He also pushed back against Thomas’s suggestion that companies lose their free speech privileges when they reach a certain size or popularity. Interpreting an important precedent, Kavanaugh explained, “The government may limit the speech of certain members of our society in order to increase The concept of the relative voice of others is completely different from the First Amendment. ” To underscore this point, he noted that previous generations complained that newspapers had unchecked power “to shape public opinion, which led to abuses of bias and manipulation.” However, the Supreme Court held that it was not appropriate for the government to force newspapers to publish the words of others. It’s not good enough.” His implicit question is: Why is the Internet any different?
Everyone else sits in the middle. Remarkably, these conflicted judges sounded quite confident that these laws violated the First Amendment when applied to pure speech platforms like Facebook and YouTube. However, they wondered whether they would also work for voice in business services, such as Etsy or Uber, and for interpersonal communications such as Gmail. Justice Elena Kagan asked whether the court could hold that the First Amendment protects “curated news sources” but not actual services such as “Venmo, Dropbox and Uber.” Kagan noted that these businesses are already prohibited from discriminating on the basis of race or gender. Can a country add an opinion to the list? (Clement, the tech giant’s lawyer, refused, much to the judge’s consternation.)
Judge Amy Coney Barrett admitted, “It’s a huge statute and it makes me a little nervous.” She told Prelogar that the case included “a whole bunch of land” and worried about its “impact on future cases.” “. Judge Ketanji Brown Jackson similarly complained that “there is a lot of uncertainty about this set of facts,” noting that “we’re not quite sure who it covers.” Jackson sounded deeply skeptical, arguing that Florida’s law is unconstitutional at least in “all applications,” raising the possibility that they might send the case back to the trial court for more fact-finding and a narrower ruling. Jackson and Barrett are more open to the possibility that the Texas law is more blatantly unconstitutional because it only applies to large speech-oriented platforms.
Concerns about decisions that are too broad or premature are understandable. But at the end of the day, Kavanaugh’s forthright take on the dispute is clearly correct. There seems to be a specious appeal to the states’ argument that they are somehow upholding free speech principles by forcing platforms to host more speech. But their argument makes no sense because the First Amendment only applies to government. The Constitution prohibits states from censoring speech; it does not give them license to tell private companies what speech they are obligated to host. Florida and Texas want to change that rule entirely. The result will be bad laws and terrible policies, and an internet dominated by rotten rhetoric that no one wants. heard.