SCOTUS Very Nearly Changed Social Media Forever. A Closer Look at a Troublingly Narrow Win.
SCOTUS Very Nearly Changed Social Media Forever. A Closer Look at a Troublingly Narrow Win.
In a surprisingly tight 5-4 unsigned opinion, which saw rare dissenting alignment between one of the High Court’s liberals and three of its staunchest conservatives, the Supreme Court narrowly put on hold HB20, Texas’s new law regulating big social media companies. A divided panel of the Fifth Circuit had let the law remain on the books pending the suit’s outcome, but the ruling on Tuesday by the Supreme Court vacated that decision. Had it not, Texas (and likely a few other states) would have forced social media companies to accept all manner of speech that went against their own company standards, or the platforms would have had to wall Texas off somehow from their services. Given the high stakes involved and the troublingly close miss at the Supreme Court, let’s take a closer look at the law and the arguments for and against it.
What HB20 Would Require and What That Would Mean
The Texas law is directed to any company with 50 million or more monthly active users, meaning it targets the big platforms such as Facebook, Twitter and YouTube while exempting smaller right-wing sites like Parler, Gab, and Trump’s new “Truth Social.” It would prohibit the big social media companies from blocking, banning or demoting posts or accounts over a “viewpoint” and further require them to publicly report information about content removal and account suspensions. It exempts sites devoted to news, sports, entertainment, and other information that users themselves do not primarily generate. There are exceptions written in for the sexual exploitation of children, incitement of criminal activity and some threats of violence.
In enacting the bill, state legislators believed that “Silicon Valley” was biased against conservative opinions and was discriminating against conservative voices. The effort picked up steam following Trump’s ban on Twitter, which also purged over 70,000 conspiracy-linked accounts following the January 6 insurrection. A bill similar to HB20 was passed in Florida but was also blocked by a federal court on First Amendment grounds, a move that was upheld by the 11th Circuit.
The platforms claim, with solid evidence to back it up, that their content moderation rules are necessary for the safety of their users and of the nation at large. While the companies say they don’t target any specific viewpoints, they do have strict rules against explicitly graphic content, bullying, hate speech and dangerous misinformation. They argued in their lawsuit that if HB20 were allowed to stand, the law would “force them to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation.” Examples they cited included “Russia’s propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo-Nazi or K.K.K. screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders.”
The Legal Arguments
Texas was represented by its extremist state attorney general, Ken Paxton. He argued that social media companies ought to be treated like railroads and telephone companies, which aren’t permitted to discriminate based on the viewpoints of the customers they serve. In his brief opposing the emergency application to stay the law, Paxton wrote that “the platforms are the 21st-century descendants of telegraph and telephone companies: that is, traditional common carriers.”
The “common carrier” argument apparently found three possibly receptive conservative justices: Alito, Thomas and Gorsuch. In his dissent, Justice Alito began by observing, “Social media platforms have transformed the way people communicate with each other and obtain news,” noting that “the power of dominant social media corporations…shape public discussion of the important issues of the day.” He observed that while some of the Court’s cases made clear that organizations have a right to refuse to host the speech of others (such as when a private parade organizer in Boston wanted to keep out LGBTQ+ marchers), other cases refused to strictly scrutinize rules that “interfere[d] with cable operators’ editorial discretion by compelling them to offer carriage to a certain minimum number of broadcast stations.” Alito then tellingly cited a law review article, “Treating Social Media Platforms Like Common Carriers?” published in the Journal of Free Speech Law.
While Justice Kagan dissented from the majority as well, she did not join in Alito’s opinion and gave no indication as to why she disagreed with putting the law on hold while the case proceeded. Kagan is generally known as a staunch defender of the First Amendment and especially the rights of individuals not to have to participate in speech with which they disagree. This could in part explain her skepticism of how speech is now so highly regulated on the major platforms.
The Court’s narrow majority sided with the plaintiffs, who comprise trade groups acting on behalf of the larger social media companies. The gist of the plaintiffs’ argument is a familiar one: The government has no business telling private companies what speech they must carry or how to regulate speech on their own private platforms. To do so would impermissibly impose the government’s viewpoints onto private actors.
“We appreciate the Supreme Court ensuring First Amendment protections, including the right not to be compelled to speak, will be upheld during the legal challenge to Texas’s social media law,” said Matt Schruers, the president of the Computer and Communications Industry Association, one of the plaintiffs in the case. “The Supreme Court noting the constitutional risks of this law is important not just for online companies and free speech, but for a key principle for democratic countries.”
Lawyers for the plaintiffs also argued that the social media companies’ content moderation policies were key to their very identities and missions as private companies. “Without these policies,” they argued, “these websites would become barnacled with slurs, pornography, spam and material harmful to children.” This is a classically conservative First Amendment position, and it was likely quite purposeful that the trade groups challenging the law picked attorneys known for their conservative viewpoints, including two former Texas state solicitors general and Paul D. Clement, a former U.S. solicitor general during the Bush administration.
Where Things Go From Here
The case is still an active one. The decision by the Supreme Court affirming the lower court’s preliminary injunction is not a decision on the merits of the case. It does indicate, however, that there are at least five justices who do not believe Texas is likely to prevail in the end. The case now goes back down for further proceedings with the district court in Texas that had originally put the law on hold.
One final note: This is not the first time that the Fifth Circuit, which oversees federal cases out of Texas, Louisiana and Mississippi and is generally regarded as the most conservative circuit in the nation, has let stand a controversial state law. It did before with Texas’s 6-week abortion ban, which is unique in that it is enforced by private litigants. There, the Fifty Circuit met with a more receptive Supreme Court, with disastrous results for the availability of abortion services in the state. We should expect that both the Texas legislature and the Fifth Circuit will continue to serve up some of the most brazen tests of the limits of the Constitution and basic rights. It is no exaggeration to say that in such a fraught climate, a single vote on the Court could forever alter the legal landscape on a number of matters as well as the lives of millions of Americans.
* * *
If you enjoyed this piece, please consider subscribing for free to receive my weekday column in your email inbox so you never miss a post!