Legal Docket: Social media and free speech

NICK EICHER, HOST: It’s The World and Everything in It for this 4th day of March, 2024. We’re so glad you’ve joined us today! Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

Our commitment to you is to give you something on everything the Supreme Court does. We cover all 60-to-80 cases it takes up. They all matter or the court wouldn’t take them. But, let’s be honest. Some are pretty dry and a little dull.

But some are like today: relevant to just about everyone and as close to you as your pocket or purse. Social media and free speech is at the center of our case today.

Last week, four straight hours of arguments about state laws that regulate how social-media companies moderate content. I listened to every minute so you don’t have to!

EICHER: Speaking of time savings, let’s dive in. I’ll give some context for these disputes that began back in 2021.

A lot of people were angry when Twitter banned President Trump from its platform after the January 6th riots. This was the pre-Elon Musk, pre-X days. Trump had nearly 90 million followers there. That’s one piece.

Another comes before that, the October before the election in 2020. Social-media platforms blocked a New York Post article that revealed the contents of Hunter Biden’s laptop. The platforms said it had the hallmarks of Russian disinformation, believing a Biden campaign operation to squash the story. It worked.

Before that, the government pressured platforms to silence dissent over the COVID-19 narrative from the Centers for Disease Control. Just a few examples.

REICHARD: In response, Florida and Texas passed laws to regulate how big social media platforms moderate content. No more deplatforming a political candidate. They must explain why content is removed; they must disclose content policy, and give users a way to lodge a complaint. Florida imposed hefty fines.

EICHER: Listen to what Florida Governor Ron DeSantis said when he signed the law in May 2021:

RON DESANTIS: Some of our biggest media conglomerates, who claim to be avatars of the First Amendment and free exchange of ideas, they've really become cheerleaders for censorship. If something doesn't fit the overriding narrative, then in their view….It's best that you edit it out of existence, rather than actually tell people the truth…. I don't think that that's what the American people want, certainly people here in Florida want and with that we’ll make it official. (clapping)

REICHARD: Soon after, Texas passed a similar law and within days, two leading Internet trade associations sued, one of them being NetChoice. The members of these trade associations operate websites like Google, Facebook, Instagram, Pinterest, and X.

They argued that as companies, they have a right to free speech that these laws violate.

EICHER: But the lower courts disagreed on whether the laws are unconstitutional. One circuit said yes, the other circuit said no.

Florida’s case was up first. Solicitor General of Florida Henry Whitaker argued social-media platforms are nothing like traditional publishers:

HENRY WHITAKER: Internet platforms today control the way millions of Americans communicate with each other and with the world. The platforms achieved that success by marketing themselves as neutral forums for free speech. Now that they host the communications of billions of users, they sing a very different tune. They now say that they are in fact editors of their users' speech, rather like a newspaper. They contend that they possess a broad First Amendment right to censor anything they host on their sites, even when doing so contradicts their own representations to consumers. But the design of the First Amendment is to prevent the suppression of speech, not to enable it. That is why the telephone company and the delivery service have no First Amendment right to use their services as a choke point to silence those they disfavor...

REICHARD: But in that argument, Justice Brett Kavanaugh heard a missing piece:

JUTICE KAVANAUGH: In your opening remarks, you said the design of the First Amendment is to prevent "suppression of speech." And you left out what I understand to be three key words in the First Amendment or to describe the First Amendment, "by the government." Do you agree "by the government" is what the First Amendment is targeting?

WHITAKER: I do agree with that, Your Honor, but I don't agree that there is no First Amendment interest in allowing the people's representatives to promote the free exchange of ideas.

That became one of several threads of legal consideration: the boundaries of the First Amendment.

On the other side for the internet companies, former Solicitor General Paul Clement. He had a simple argument: the laws are flat out unconstitutional. His clients can’t be forced to host content they find objectionable. Besides, who wants to be inundated with a bunch of unwanted online content?

PAUL CLEMENT: Indeed, given the vast amount of material on the Internet in general and on these websites in particular, exercising editorial discretion is absolutely necessary to make the websites useful for users and advertisers.

EICHER: But there’s the rub: what’s “editorial discretion?” Here’s an exchange between Justice Clarence Thomas and Clement:

JUSTICE THOMAS: Can you give me one example of a case in which we have said the First Amendment protects the right to censor?

CLEMENT: So I don't know that the Court used that particular locution, Justice Thomas…

Locution particulars aside, applying First Amendment rights to the dynamic tech industry proved dicey.

JUSTICE THOMAS: We're using broad terms like "content moderation," throughout the briefs, you have "shadow banning," "deprioritizing," and all sorts of things. And I guess, with these facial challenges, I always have a problem that we're not talking about anything specific.

Lots of phrases there. Justice Samuel Alito followed up on the first one Justice Thomas mentioned: “content moderation.”

JUSTICE ALITO: Could you define that for me?

CLEMENT: So, you know, look, content moderation to me is just editorial discretion. It's a way to take all of the content that is potentially posted on the site, exercise editorial discretion in order to make it less offensive to users and advertisers.

ALITO: Is it anything more than a euphemism for censorship?

REICHARD: Whitaker for Florida took that notion and injected doubt into Clement’s explanation, referencing a case decided last year:

WHITAKER: In Twitter v. Taamneh, the platforms told you that they didn't even know that ISIS was on their platform and doing things, and it is a strange kind of editor that does not even know the material that it is editing.

In another line of questioning, Justice Thomas brought up conflict with other laws. Specifically, the law known as Section 230 of the Communications Decency Act of 1996. Tech companies rely on it to shield them from liability for what users say on their platforms.

It reads: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information provider.”

Again, Justice Thomas and Clement:

JUSTICE THOMAS: I've been fortunate or unfortunate to have been here for most of the development of the Internet. (Laughter.) And the argument under Section 230 has been that you're merely a conduit…that was the case back in the '90s and perhaps the early 2000s. Now you're saying that you are engaged in editorial discretion and expressive conduct. Doesn't that seem to undermine your Section 230 arguments?

CLEMENT: With respect, Justice Thomas, I mean, obviously, you were here for all of it. I wasn't here for all of it. But my understanding is…

EICHER: Clement answered that in passing Section 230 Congress encouraged editorial discretion to keep bad stuff off the internet, and still not treat platforms as publishers with the usual liability. He basically waved it off as a distraction from the question of whether platforms that moderate content are protected by the First Amendment.

Justice Thomas then threw Clement a curve ball: Is an algorithm speech?

CLEMENT: I don't think so, Your Honor. These algorithms don't spring from the ether. They are essentially computer programs designed by humans to try to do some of this editorial function and it's --

JUSTICE THOMAS: Well, but what do you do with a deep-learning algorithm which teaches itself and has very little human intervention?

CLEMENT: You still had to have somebody who kind of created the universe that that algorithm is going to look at.

JUSTICE THOMAS: So who’s speaking then? The algorithm or the person?

Ferreting out definitions and who is speaking is one thing.

But Justice Alito wanted to know exactly which platforms the Florida law covers:

JUSTICE ALITO: So does Gmail have a First Amendment right to delete, let's say, Tucker Carlson's or Rachel Maddow's Gmail accounts if they don't agree with her -- his or her viewpoints?

CLEMENT: They -- they might be able to do that, Your Honor.

REICHARD: The Texas argument came last, with Clement again advocating for the tech companies. Texas law is different from Florida’s in that it excludes websites like Gmail from its definition of “social media platforms.”

Clement argued, no matter.

CLEMENT: The other thing it excludes, of course, is websites that are primarily focused on news, sports, and entertainment. In the First Amendment business, we call that content-based discrimination, and that's just one of the many reasons that this statute is, dare I say it, facially unconstitutional.

EICHER: “Facially unconstitutional,” meaning a law that is always unconstitutional, no matter the circumstances. For example, a law that bans all public speeches critical of the government. The First Amendment doesn’t permit that, ever. Unconstitutional on its face.

REICHARD: But Texas Solicitor General Aaron Nielson argued an example from history where government intervention in communication was upheld.

Western Union refused to carry telegraph messages dealing with unions and strikes. Eventually, the government required telegraph operators to impartially transmit such speech.

AARON NIELSON: Yet, under the platforms' theory, Western Union was just making editorial choices not to transmit pro-union views. Today, millions of Americans don't visit friends or family or even go to work …in person. Everybody is online. The modern public square. Yet, if platforms that passively host the speech of billions of people are themselves the speakers and can discriminate, there will be no public square to speak of…And as more than 40 states warned the Court, the implications are gravely serious.

EICHER: Serious, in that Congress could be rendered powerless to address the social media crisis devastating children.

REICHARD: I counted 81 friends of the court briefs filed in this case. One that caught my eye came from Becket, a firm that defends religious liberty. Filed in support of neither party, it asked the court not to lump religious speech in with other kinds of speech as here, which is about commercial activity. Sincere religious speech is its own thing.

I couldn’t help but wonder: If the court strikes down the laws of Florida and Texas, then what’s to stop social media platforms from doing again what they did to President Trump, to COVID dissenters, or legitimate reporting?

We will be hearing much more on this. On March 18, the court hears a case involving the Biden administration’s pressure on social media platforms to censor conservatives.

And that’s this week’s Legal Docket!

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