Yesterday, the United States Supreme Court heard oral arguments over state attempts to regulate content moderation on social media platforms, NetChoice v. Paxton (Texas) and Moody v. NetChoice (Florida). The two cases differ in some details but not in intention and certainly not in constitutional harms.
Driven by outrage over “Big Tech’s” supposed discrimination against conservatives, the very red states of Florida and Texas jammed legislation through that allowed state legislators to demagogue against the tech menace and to preen for the voters. But for many of us, the constitutional defects of the legislation were painfully obvious.
And those defects were made clear in Monday’s oral arguments.
- Social media sites are private actors, not government actors. Only the government can censor speech, which is a violation of the First Amendment. Conversely, as a private actor, social media sites are protected by the First Amendment against government control of the expression they choose to host. The First Amendment exists to protect private actors against the government, not to empower government over private actors.
- Websites have a right to curate the experience they want their customers to have. One justice brought up the example of “shouldn’t a Catholic discussion website have the right to exclude onery Protestants?” A state regulation demanding viewpoint neutrality not only would bar that example but would actually require websites to allow antisemitic posts if they allow pro-semitic posts.
In a bizarre development, the Texas solicitor general cited the support of Tim Wu and Zephyr Teachout—two of the most radical progressive actors in the tech space—for the Texas legislation that was driven by social conservatives.
Which reminds us that social conservatives aren’t the only ones who want to regulate online speech. Empowering government to regulate online speech won’t be limited to the preferences of a couple of red states.
In other words, what is at stake is not just a few big social media platforms, but the future of online speech.
Ultimately, these efforts will fail. Most likely, the Supreme Court will find them to be unconstitutional. And over time the panic over social media harming society will take its place in the long line of panics over things like violent video games, rap music, racy television shows, pop music and even Elvis Presley.
But there is another scenario. The Texas law not only demands that social media sites enforce viewpoint neutrality, but it also outrageously bars such companies from leaving the Texas market. So if social media platforms are forced to comply with these laws, these sites would soon be filled with all sorts of harmful, offensive content, which would drive advertisers and users away from those platforms and eventually cause them to fail.
Unless that was the legislators’ real goal in the first place.