Can governments tell Big Tech companies how to edit content and monitor their platforms? That's the question posed before the Supreme Court on Monday in two of his cases with major First Amendment implications: Moody v. NetChoice and NetChoice v. Paxton.
Can governments tell Big Tech companies how to edit content and monitor their platforms? That's the question posed before the Supreme Court on Monday in two of his cases with major First Amendment implications: Moody v. NetChoice and NetChoice v. Paxton.
Tech industry group NetChoice is challenging laws in Texas and Florida that seek to prevent social media platforms from silencing conservatives. Republicans are understandably frustrated by censorship that often antagonizes conservatives, including us. But the solution to business censorship for conservatives is not government censorship of business.
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Tech industry group NetChoice is challenging laws in Texas and Florida that seek to prevent social media platforms from silencing conservatives. Republicans are understandably frustrated by censorship that often antagonizes conservatives, including us. But the solution to business censorship for conservatives is not government censorship of business.
Florida law prohibits major social media platforms from deleting political candidates' accounts or suppressing posts by or about candidates. It also states that platforms cannot take “any action to censor, de-platform, or shadowban journalism companies based on the content of their publications or broadcasts,” and set their standards “in a consistent manner.” “in” shall be applied between users.
Texas law prohibits platforms from making editorial decisions based on a user's expressive viewpoint, but that viewpoint is not clearly defined. The law is so broad that it could prohibit platforms from suppressing pro-Nazi speech or content that glorifies eating disorders. Both laws require platforms to provide detailed explanations of why posts are being removed. Companies could face stiff penalties and lawsuits from the government.
NetChoice contends that the law limits First Amendment speech rights by restricting platforms' editorial discretion. A court recently ruled in 303 Creative LLC that Colorado cannot force a website designer to create work that violates its values. NetChoice says the same principles should apply to Texas and Florida laws.
Although social media platforms like Instagram and YouTube are not traditional publishers like newspapers or broadcast stations, they do exercise editorial judgment when deciding what content to remove, suppress, or amplify. Masu. We also exercise discretion in curating user feeds and making recommendations.
States do not agree. They argue that their laws regulate business conduct, not expression. They also argue that states can prohibit publicly traded companies from discriminating against customers based on the carrier doctrine, which predates the U.S. Constitution.
“Common carriers generally open their facilities to all speakers and speech,” the state of Florida wrote in its brief. Therefore, telephone companies, Internet service providers, and distribution services do not have a license to erase the content they communicate or cancel subscribers they disturb.”
This analogy is inappropriate. Companies regulated as general telecommunications carriers, such as telephone companies, taxis, railways, and electric power companies, do not engage in editorial or expressive activities. But states implicitly acknowledge that when they accuse social media platforms of discriminating against adverse speech, they do, in fact, engage in such expressions. Florida and Texas cannot have both positions.
The most important problem is that extending carrier regulation to social media platforms would lead to increased government control of speech. Do Florida and Texas want Federal Trade Commission Chairman Lina Khan to tell them what they can and cannot say online? Could California pass a law requiring companies to remove posts criticizing transgender men's participation in women's sports?
Texas and Florida rely heavily on the court's 1980 Prune Yard precedent, which allows California to extend constitutional free speech protections to shopping malls. This is because malls are open to the public. However, shopping malls typically do not engage in activities protected by the First Amendment. Prune Yard also briefly disrespected business owners' property rights.
A more relevant precedent is Miami Herald Publishers v. Tornillo (1974), which upheld a Florida law requiring newspapers to provide equal space to respond to editorials critical of political candidates. Overturned. The court said the law's coercive and chilling effect on speech “may well lead editors to conclude that avoiding controversy is a safe bet.”
Florida and Texas laws are similar. If the law is in effect, companies will no doubt refrain from cracking down on platforms to avoid bankruptcy from lawsuits. While some conservatives may prefer the freedom to participate online, the free market has created a platform for them. Ever since Elon Musk acquired Company X (formerly Twitter), he has taken a lenient attitude toward content regulation. But if you're worried about cultural damage from social media right now, imagine if sites are obligated to give up anything.
Incidentally, these two lawsuits are separate from those the court will hear in the coming weeks regarding the Biden administration's push on technology platforms to censor conservatives. The case of Marcy v. Missouri involves government censorship and appears to be a violation of the First Amendment.
Conservatives are right to worry that left-wing tech companies are trying to exclude their ideas. There is no easy solution to this problem. Exposure and condemnation of censorship helped. But when the expected remedy is to give the government the power to control speech, it never ends well for conservatives or anyone else. The Supreme Court could clarify that for Texas and Florida.
