The Supreme Court on Tuesday issued a brief order blocking a Texas law that would have effectively taken control of the entire content moderation process on major social media sites such as Facebook, Twitter and YouTube.
Texas law imposed such onerous requirements on these sites, including disclosure requirements that may literally be impossible to meet, that it posed an existential threat to the entire social media industry. Facebook, for example, removes billions of pieces of content from its website every year. Texas law would require Facebook to post a written explanation of each such decision.
At the very least, the law would have prevented major social media sites from engaging in the most basic forms of content moderation, such as deleting posts by literal Nazis who advocate mass genocide, or banning people who stalk and harass their former romantic partners.
The vote in Netchoice vs. Paxton was 5-4, although it is likely that Judge Elena Kagan voted with the dissent for procedural reasons unrelated to the merits of the case.
The law prohibits major social media sites from banning a user, regulating or restricting a user’s content, or even changing algorithms that expose content to other users due to the “point of view”. view” of a user.
In practice, this rule would make content moderation impossible. Suppose, for example, that a Twitter user named @HitlerWasRight sends out a tweet calling for the systematic execution of all Jews. Under Texas law, Twitter could not remove this tweet, or ban this user, unless it did the same to any user who took the opposite view, i.e. Jews should be allowed to continue living.
Texas Governor Greg Abbott (right) claimed when he signed the law he did so to thwart a ‘dangerous move by social media companies to silence viewpoints and conservative ideas. Evidence that social media companies systematically target conservatives is quite thin, although a few high profile Republicans such as former President Donald Trump have been banned from some platforms – Trump was banned from Twitter and Facebook after he seemed to encourage the January 6 attack on the United States Capitol.
The Court did not explain its reasoning, which is common when asked to temporarily block a law. And Tuesday’s order is only temporary — the court will likely have to make a final decision on the fate of the Texas law at a later date.
But the decision of the majority is in accordance with the law in force.
With rare exceptions, it is well established that the First Amendment does not authorize the government to force a media company – or anyone else, for that matter – to publish content that they do not wish to publish. As recently as the Court’s decision in 2019 in Manhattan Community Access Corp. against Halleckthe Court reaffirmed that “where a private entity provides a forum for speech”, it may “exercise editorial discretion over the speech and speakers in the forum”.
Although the idea that a company like Twitter or Facebook has First Amendment rights has been criticized by the left following the Supreme Court’s campaign finance ruling in Citizens United v FEC (2010), the rule that corporations have protections for free speech predates United Citizens. Newspapers, book publishers, and other such media companies have long been allowed to enforce their First Amendment rights in court.
The most surprising thing about Tuesday’s order is that Kagan, a liberal appointed by President Barack Obama, opposed the court order suspending the Texas law.
Although Kagan has not explained why she dissented, she openly criticizes the Court’s increasingly frequent practice of deciding major cases on its “shadow case”, a rushed process where cases are decided without a full briefing. nor pleading. netchoice arose on the Court’s fictional docket, so it’s possible that Kagan dissented in order to stay consistent with his previous criticism of that docket.
Meanwhile, the Court’s three most conservative justices, Justices Clarence Thomas, Justices Samuel Alito and Neil Gorsuch, all joined in a dissent by Alito that would have left the Texas law in place.
Alito’s dissent suggests two narrow First Amendment exceptions should be significantly broadened
Alito asserted that the question of whether a state government can effectively take control of a social media company’s content moderation is not settled, pointing to two cases that have created narrow exceptions to the general rule. that the government cannot require a company to host speech it does not want. host.
The first one, Pruneyard Mall vs. Robins (1980), upheld a California law that required shopping malls open to the public to allow individuals to collect signatures for a mall property petition. The second, Turner Broadcasting v. FCC (1994), upheld a federal law requiring cable companies to carry local television stations.
But, insofar as Pruneyard could be interpreted as authorizing Texas law, the Court rejected this interpretation of the decision. In PG&E v. public utility commission (1986), four judges stated that Pruneyard “does not undermine the proposition that forced associations that weigh on protected speech are impermissible.” Thus, a social media company may refuse to associate with a user who posts offensive content.
Meanwhile, Judge Thurgood Marshall wrote that Pruneyard should only apply where a law is minimally “intrusive” to a business – a standard met by allowing a petitioner to collect signatures on your property, not by Texas law, which would fundamentally alter the business operations of social media companies and prevent them from removing the most offensive content.
Likewise, the Turner held that cable companies are subject to more stringent regulation than most media companies because they often have exclusive physical control over the cables that bring television stations into individual homes. This is not true for social media websites. Although some social media platforms may dominate the market, they have no physical control over the infrastructure that brings the Internet into people’s homes and offices.
The Supreme Court case governing how the First Amendment applies to the Internet is Reno vs. ACLU (1997), who argued that “our cases provide no basis for qualifying the level of First Amendment control that should be applied” to the Internet.
Had Alito’s approach prevailed, Texas law would most likely have turned all major social media platforms into 4chan, a toxic dumping ground of racial slurs, misogyny, and targeted harassment that the platforms would be powerless to control. It could also have placed each social media company at the whim of the 50 states, which could impose 50 different content moderation regimes. What is Twitter or Facebook supposed to do, after all, if California, Nebraska or Wyoming adopts social media regulations that contradict the law enacted by Texas?
For the moment, this outcome is avoided. But because netchoice happened on the Court’s parallel docket, and because a majority of the Court resolved that case in a brief order without any explanation of its reasoning, the question of whether the First Amendment allows the government to regulate the moderation of social media remains technically open – although the fact that a majority of the Court has intervened to block this law bodes well for the social media industry as its challenge to the Texas law continues.
The court order in netchoice is temporary. It preserves the status quo until the Court can make a final ruling on how the First Amendment applies to social media.
But this question is unlikely to remain open for very long. Two federal appeals courts have issued conflicting rulings on the legality of Texas-style laws. The Supreme Court will therefore have to intervene soon to resolve this conflict.