Big Tech has grabbed its power from the Constitution

On the Supreme Court’s Case for Discriminating Moderation on Social Media: NetChoice v. Paxton and the First Amendment

This fact has not gone unnoticed. Texas has written its own law forbidding big tech companies from discriminating against viewpoint when taking posts off of their social media platforms. Two advocacy groups funded by Facebook, Google, Twitter and other companies sued almost immediately, arguing that they have a First Amendment right to remove whatever they want from their platforms for any reason, sort of as an editor might if she were choosing which articles to run in her print magazine every month. It has raised a constitutional question tricky enough to have made it to the Supreme Court in a case that will be argued on Monday called NetChoice v. Paxton.

On the average day, some 95 million pictures are posted on Instagram, along with 34 million videos on TikTok and hundreds of millions of tweets. Some go viral, others don’t. And some percentage — the numbers are unclear — are taken down for violating the content rules set by the platforms. Given the volume of posts and videos, it is no exaggeration to say that the rules for social media have become the most important speech regulations on the planet, policing what can and cannot be said online.

The laws were aimed at the content moderation practices of major social media platforms like Meta’s Facebook and Instagram and Google’s YouTube. The justices name-checked the companies that aren’t hosting users’ views during the argument.

“I think that they were hoping that they could get rid of this and move on to a new issue,” Hans said of NetChoice. “And that’s not going to happen based on what I heard today.”

While the facial challenges gave NetChoice the chance to preclude similar laws from popping up around the country, it seemed to be a hang-up for some justices, who saw possibly legitimate applications or worried about creating an industry that could not be touched by regulation.

There are laws that prohibit discriminating moderation and require websites to reveal some aspects of how they moderate. The Knight First Amendment Institute’s executive director noted in a statement that the justices didn’t spend much time discussing transparency requirements. Nonetheless, “how the court addresses those provisions could effectively decide whether even carefully drafted social media transparency laws can be constitutional,” he said.

“That is a potential path that this case could travel,” Lawrence Walters, general counsel at the Woodhull Freedom Foundation, said during a press conference after the arguments. “I think the justices really wanted to explore what all their options were before rendering what could be a historic landmark decision.”

If the justices wanted to take the cases to the top court at a later stage, they could request that the cases be sent to the lower courts to get a more developed record.

“The challenge for the justices is that the cases came to them in an ‘all or nothing’ procedural posture, and they spent a lot of time trying to figure out whose fault that was and what they should do about it,” James Grimmelmann, digital and information law professor at Cornell Law School, said in an emailed statement. I would expect the court to issue relatively small rulings that make it clear that portions of the state laws are unconstitutional, and let litigation play out to determine whether other provisions of these laws are constitutional.

Part of the reason the court struggled with the limits of the law was because the factual record of the cases was not very developed. NetChoice got preliminary injunctions to stop the laws from taking effect.

The court could develop some sort of standard to say which companies can be subject to laws like Florida’s and Texas’, even while skirting thorny questions like whether social media sites are common carriers akin to delivery trucks or telephone companies. One option would be to explain what makes a company eligible to exercise editorial discretion based on the “expressive nature of their business,” Hans said.

Hans said that if the court were to take a traditional approach in this case, it would insulate the economy from regulation and potentially make the court too far off base. I suppose that is the reason why there was so much discussion of the lines and what they mean.

NetChoice made a “facial” challenge against the social media laws and argued that they have no constitutional application, as the justices discussed. The laws would be unconstitutional if a challenge was applied to a specific set of companies or circumstances.

The justices pressed for ways to rule without giving both sides everything they asked for during Monday’s arguments.

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