The Supreme Court Should Protect Social-Media Free Speech

National Review Online 

Friday, June 03, 2022 

 

The social-media age promised a new, more democratic marketplace of ideas, in which an ordinary citizen without a printing press or a TV station could be heard by a mass audience. Private companies would publish the speech of all comers. Today, social-media companies play an important role in facilitating public discourse, especially on matters of politics. Americans have come to depend on them as if they were public fora. 

 

Yet the leading social-media giants have earned the public’s mistrust through politically biased and often arbitrary and inconsistent use of their power to censor or promote content on their platforms. They banned the president of the United States and, more scandalously, suppressed the New York Post’s legitimate and accurate news story about Hunter Biden’s laptop during the heat of the 2020 presidential campaign. Ordinary citizens have felt the brunt of these content-moderation follies with fewer avenues of recourse than the Post or Donald Trump. 

 

Given America’s vibrant free-speech tradition, this has predictably produced a political backlash, and states such as Florida and Texas have passed laws aiming to limit the platforms’ liberty to discriminate against political viewpoints or put a thumb on the scale of election-year speech. We should like to see the platforms adopt the policies behind these laws and are encouraged that Elon Musk’s bid for Twitter, if successful, will be a step in that direction. 

 

But the platforms are still private actors, and they have First Amendment rights of their own. The Supreme Court has long protected newspapers and cable TV channels from being compelled to print or air content they disagree with. The Reagan administration wisely withdrew the Fairness Doctrine, which compelled broadcast television and radio to offer equal time to balance their political content. The end of the Fairness Doctrine made possible the explosion of conservative talk radio. 

 

A commonly posited rationale for regulation is that these platforms came about their dominant position fraudulently — i.e., they promised a free-flowing marketplace of ideas but began engaging in politicized regulation of content once they achieved market dominance. Others argue that those dominant market positions should themselves be broken through antitrust enforcement. Whatever the merits of those arguments under the legal standards for fraud or antitrust, they do not change the First Amendment analysis or provide a pretext for prior restraints on the liberties of private actors. 

 

First Amendment court challenges have stopped the Florida and Texas laws in their tracks. The U.S. Court of Appeals for the Eleventh Circuit struck down most of Florida’s law, concluding that it invaded the platforms’ right to decide what to publish. The Supreme Court on Tuesday reinstated, by a 5–4 vote, a preliminary injunction against the Texas law. 

 

Because the question is one of national importance, and the value of free speech is foundational, the Court should hear one or both of these cases on the merits at the first opportunity. It should apply the First Amendment as originally written, no matter how sympathetic may be the political case for these laws. 

 

We think that a proper application of the First Amendment will leave little of either law standing. As Justices Clarence Thomas and Samuel Alito have observed, there is a history of government regulating common carriers in transportation such as railroads and public accommodations such as hotels in a way that effectively compels them to take all comers. But that history has not traditionally extended to publishers of speech, and the government’s power to legislatively turn an industry into a common carrier in order to evade the Bill of Rights is dubious. 

 

Moreover, traditionally, telegraph companies had the right to exclude some speech that was obscene or otherwise objectionable, and even common carriers and public accommodations did not lose all right to exclude people in order to protect the decency of their facilities. Congress was working within that tradition in 1996 when it enacted Section 230 of the Communications Decency Act. We do not suggest that the lawsuit protections created by Section 230 are constitutionally mandated or immune to prudent revision, but they reflect a deeply rooted American tradition in which government-compelled publication of the speech of others is viewed with skepticism. The Court should conserve that tradition.