Supreme Court battle over social media laws in Texas and Florida looks likely

Conflicting lower court rulings regarding the removal of controversial content from social media platforms point to a landmark Supreme Court ruling on whether the First Amendment protects Big Tech’s editorial discretion or prohibits its censorship of unpopular opinions.

The stakes are high not just for government and business, but because of the increasingly dominant role that platforms like Twitter and Facebook are playing in American democracy and elections. Social media posts have the potential to amplify misinformation or hate speech, but suppressing controversial viewpoints can stifle public discourse on important political issues.

Governments that say conservative voices are most often suppressed by tech company decisions won a major victory on Friday, when a split panel of the United States Court of Appeals for the 5th Circuit upheld a Texas law prohibiting companies from removing political ideology based on the posts.

Appeals court upholds Texas social media law

“Big Tech’s reign of endless censorship and their suppression of conservative viewpoints is coming to an end,” Texas Attorney General Ken Paxton (R) said after decision. “These huge corporate entities cannot continue to go unchecked as they silence the voices of millions of Americans.”

But a unanimous panel of the United States Court of Appeals for the 11th Circuit went the other way earlier this year, saying a similar Florida law violated constitutional protections for tech companies that don’t want to host views on their platforms that they find hateful and divisive. or false.

Judge Kevin Newsom criticized a portrayal of social media platforms as “dumb pipes…reflexively passing data from point A to point B.” Instead, he wrote, their “content moderation decisions constitute the same type of editorial judgments” entitled to First Amendment protections when made by a newspaper.

All of the appellate court judges who have reviewed the Florida and Texas statutes have noted the difficulty of applying certain Supreme Court precedents regarding legacy media. And all weighing in so far have been nominated by Republican presidents, with Newsom and Judge Andrew Oldham writing the conflicting opinion in the Texas case, both nominated by President Donald Trump, who was expelled. of Twitter following the US Capitol riot on January 6, 2021.

“We are in a new, very large arena for speakers and for those who would moderate their speech,” wrote Judge Leslie Southwick, who served on the 5th Circuit for 15 years and opposed Friday’s ruling. “None of the previous ones match perfectly. … The closest match I see is case law establishing the right of newspapers to control what they do and don’t publish, and that’s the law that guides me until the Supreme Court gives us more .

It is possible that such guidelines will come soon, perhaps in the quarter that begins next month. Disagreements between lower courts over significant legal issues are the most likely driver of the Supreme Court’s decision to take up a case, and Florida’s motion challenging the 11th Circuit’s decision is due in court on Wednesday. High Court.

When judges in May ruled to block the Texas law from going into effect while legal battles continued, Judge Samuel A. Alito Jr. said the issue “clearly deserves this court’s consideration.” .

Supreme Court blocks Texas social media law for now

“Social media platforms have transformed the way people communicate with each other and get news,” wrote Alito, who was joined by colleagues Clarence Thomas and Neil M. Gorsuch. “This is a groundbreaking Texas law that addresses the power of mainstream social media companies to shape public debate on important issues of the day.”

Alito added, “It’s not at all clear how our existing precedents, which predate the internet age, should apply to large social media companies.” The majority of the court did not explain its reasoning for blocking the Texas law, but at the time only a district court weighed in and ruled for the tech companies.

Oldham’s opinion changed that. He wrote that social media companies “offer a rather odd inversion of the First Amendment.”

“This amendment, of course, protects every person’s right to ‘freedom of speech,'” Oldham wrote. “But the platforms argue that buried somewhere in a person’s enumerated right to free speech is a company’s right not numbered right to muzzle word.”

Generally speaking, legal experts who are following the case closely said the 5th Circuit’s decision contradicts long-standing court precedent and warned that Texas law would require companies to broadcast what they consider such as misinformation and harmful content on their platforms.

“To the extent that politicians have spread conspiracy theories or incitements, that will no longer be grounds for platforms to take them down,” said Evelyn Douek, who teaches online speech regulation at Stanford Law School. Social media platforms, she added, could be forced to keep “a lot of horrible and otherwise hateful speech” that they are currently removing and “could become unusable”.

At its most basic, the First Amendment protects against government interference with speech. Courts have also ruled that the First Amendment protects the right of private businesses, including newspapers and broadcasters, to control the speech they publish and broadcast. This includes the right of publishers not to publish anything they don’t want to publish.

In a 2019 ruling, Judge Brett M. Kavanaugh wrote for court conservatives that a private cable company did not become a government actor subject to First Amendment restrictions simply because it was licensed. by a government.

During the decision, he referred to the role of private companies. “Providing some sort of forum for speech is not an activity that only government entities have traditionally performed,” Kavanaugh wrote in Manhattan Community Access Corp. against Halleck. “Thus, a private entity which offers a space for speech does not transform itself by this fact alone into a state actor.”

Liberals on the court dissented on the specifics of the case but appeared to agree on the rights of private companies. “There are purely private spaces, where the First Amendment is (as relevant here) inapplicable,” Judge Sonia Sotomayor wrote. “The First Amendment leaves a private store owner (or owner), for example, free to remove a customer (or guest) for expressing unwanted opinions.”

Oldham found this unilluminating for the Texas case and pointed to a footnote in Kavanaugh’s opinion: “A separate issue not raised here is the extent to which the First Amendment protected private entities such as [media companies] legislation or governmental regulations obliging these private entities to open their property to the word of others”.

Oldham distinguished newspapers from social media platforms, which Oldham says are more akin to “common carriers” like telephone companies. (Thomas also said he was open to such a reading of the law.) Legal experts said the court was correct in noting the difference, but that online platforms are separate from, say, phone companies, which don’t not cut the service based on the content of a conversation.

“That’s what makes these cases difficult,” said Jameel Jaffer, director of Columbia University’s Knight First Amendment Institute. “We don’t have a doctrinal box to put social media platforms in. They occupy a new space, and they should also occupy a new space in the law, but what does that look like?”

Some laws that would be unconstitutional with respect to the media and their publishing decisions, Jaffer suggested, could be allowed with respect to social media platforms. A social media company could be required, for example, to explain its decision to remove someone from its platform or be more transparent about how it moderates content.

The Texas and Florida statutes both contain such provisions, and the judges reviewing them were inclined to let them stand.

Alan Z. Rozenshtein, a professor at the University of Minnesota Law School, agreed with the 5th Circuit’s portrayal of social media platforms as increasingly at the center of public debate, and said that there was potentially a role for some government regulation of content moderation. But he said Texas law went too far, calling the 5th Circuit’s position that content moderation is “extreme” censorship.

Companies, he said, are trying to create platforms that their users will “want to hang out on.”

“We can talk about whether Nazis and terrorists should be allowed to speak or not, but it’s not just censorship,” he said. “If you have an unmoderated cesspool, that’s fine for trolls, but it’s not conducive to other people’s speech, especially for those who are going to be threatened and put off. There has to be a balance.”

Tech industry groups representing social media companies are still considering how they will react to the decision. Lawyers for the Computer & Communications Industry Association (CCIA) and Netchoice met on Monday to discuss how to challenge the decision, according to a person familiar with the matter who spoke on condition of anonymity to discuss their plans.

They are considering an emergency application to the Supreme Court to stop the law from taking effect early next month, the person said. The groups are also considering asking a full complement of 5th Circuit judges to reconsider the case originally decided by a three-judge panel or appeal directly to the high court, potentially forcing a ruling that could have broad implications for state legislatures considering legislation similar to Texas law.

“The fight is far from over and, in the long term, we are confident that any decision that attempts to legally impose the views of a private company will not hold,” said CCIA President Matt Schruers. .

Cat Zakrzewski contributed to this report.

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