Conflicting lower court rulings about removing controversial material from social media platforms point toward a landmark Supreme Court decision on whether the First Amendment protects Big Tech’s editorial discretion or forbids its censorship of unpopular views.
The stakes are high not just for government and the companies, but because of the increasingly dominant role platforms such as Twitter and Facebook play in American democracy and elections. Social media posts have the potential to amplify disinformation or hateful speech, but removal of controversial viewpoints can stifle public discourse about important political issues.
Governments that say conservative voices are the ones most often eliminated by the decisions of tech companies scored a major victory Friday, when a divided panel of the U.S. Court of Appeals for the 5th Circuit upheld a Texas law barring companies from removing posts based on political ideology.
“Big Tech’s reign of endless censorship and their suppression of conservative viewpoints is coming to an end,” Texas Attorney General Ken Paxton (R) said after the decision. “These massive corporate entities cannot continue to go unchecked as they silence the voices of millions of Americans.”
But a unanimous panel of the U.S. Court of Appeals for the 11th Circuit went the other way earlier this year, saying that a similar Florida law violated constitutional protections for tech companies that do not want to host views on their platforms that they find hateful, divisive or false.
Judge Kevin Newsom criticized a depiction of social media platforms as “dumb pipes . . . reflexively transmitting data from point A to point B.” Instead, he wrote, their “content-moderation decisions constitute the same sort of editorial judgments” entitled to First Amendment protections when made by a newspaper.
All of the appeals court judges considering the Florida and Texas laws have noted the difficulty of applying some Supreme Court precedents regarding legacy media. And all weighing in so far were nominated by Republican presidents, with Newsom and Judge Andrew Oldham, who wrote the conflicting opinion in the Texas case, both nominated by President Donald Trump, who was kicked off Twitter in the aftermath of the U.S. Capitol riot on Jan. 6, 2021.
“We are in a new arena, a very extensive one, for speakers and for those who would moderate their speech,” wrote Judge Leslie Southwick, who has served on the 5th Circuit for 15 years and dissented from Friday’s decision. “None of the precedents fit seamlessly. . . . The closest match I see is case law establishing the right of newspapers to control what they do and do not print, and that is the law that guides me until the Supreme Court gives us more.”
It is possible such guidance will come soon, perhaps in the term that begins next month. Disagreements among lower courts about important legal issues is the most likely driver of the Supreme Court’s decision to take up a case, and Florida’s petition challenging the 11th Circuit ruling is due at the high court Wednesday.
When the justices in May decided to keep Texas’s law from taking effect while legal battles continued, Justice Samuel A. Alito Jr. said the issue “will plainly merit this court’s review.”
“Social media platforms have transformed the way people communicate with each other and obtain news,” wrote Alito, who was joined by colleagues Clarence Thomas and Neil M. Gorsuch. “At issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”
Alito added: “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.” The court’s majority did not explain its reasoning for blocking the Texas law, but at the time, only a district court had weighed in, and it had ruled for the tech companies.
Oldham’s opinion changed that. He wrote that social media companies “offer a rather odd inversion of the First Amendment.”
“That Amendment, of course, protects every person’s right to ‘the freedom of speech,'” Oldham wrote. “But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.”
Generally, legal experts closely tracking the case said the 5th Circuit decision is at odds with long-standing court precedent and warned that the Texas law would force the companies to disseminate what they consider misinformation and harmful content on their platforms.
“To the extent that politicians have spread conspiracy theories or incitement, that will no longer be grounds for platforms taking them down,” said Evelyn Douek, who teaches about the regulation of online speech at Stanford Law School. Social media platforms, she added, may be forced to keep “a lot of horrible and otherwise hateful speech” that they currently remove and “may become unusable.”
At its core, the First Amendment protects against government infringement on speech. Courts have also held that the First Amendment protects the right of private companies, including newspapers and broadcasters, to control the speech they publish and disseminate. That includes the right of editors not to publish something they don’t want to publish.
In a 2019 decision, Justice Brett M. Kavanaugh wrote for the court’s conservatives that a private cable access company did not become a government actor subject to the First Amendment’s restrictions just because it was licensed by a government.
In the course of the decision, he touched on the roles of private companies. “Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed,” Kavanaugh wrote in Manhattan Community Access Corp. v. Halleck. “Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.”
The liberals on the court dissented on the specifics of the case but seemed to agree on the rights of private companies. “There are purely private spaces, where the First Amendment is (as relevant here) inapplicable,” wrote Justice Sonia Sotomayor. “The First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views.”
Oldham found that unenlightening for the Texas case, and pointed to a footnote in Kavanaugh’s opinion: “A distinct question not raised here is the degree to which the First Amendment protects private entities such as [media companies] from government legislation or regulation requiring those private entities to open their property for speech by others.”
Oldham distinguished newspapers from social media platforms, which Oldham writes are more akin to “common carriers” like telephone companies. (Thomas also has declared himself open to such a reading of the law.) Legal experts said the court was correct to note the difference, but that online platforms are distinct from phone companies, for instance, which do not cut off service based on the content of a conversation.
“That’s what makes these cases hard,” said Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University. “We don’t have a doctrinal box to put social media platforms in. They occupy a new space, and they should occupy a new space in the law too, but what does that look like?”
Some laws that would be unconstitutional as applied to news outlets and their publishing decisions, Jaffer suggested, may be permitted when it comes to social media platforms. A social media company could be required, for instance, to explain its decision to remove someone from its platform or to be more transparent about how it moderates content.
Both the Texas and Florida laws have such provisions, and the judges reviewing them were inclined to let them stand.
Alan Z. Rozenshtein, a professor at the University of Minnesota Law School, agreed with the 5th Circuit’s description of social media platforms as increasingly central to public discussion, and said there is potentially a role for some government regulation of content moderation. But he said the Texas law goes too far, calling the 5th Circuit’s position that content moderation is censorship “extreme.”
The companies, he said, are trying to create platforms that their users “want to hang out on.”
“We can talk about whether or not Nazis and terrorists should have the right to speak, but it’s not straightforward censorship,” he said. “If you have an unmoderated cesspool, that’s great for the trolls, but that’s not conducive to other people’s speech—especially to those who are going to be threatened and turned off. There has to be some balance.”
Tech industry groups representing the social media companies are still weighing how they will respond to the ruling. Lawyers for the Computer & Communications Industry Association and Netchoice met Monday to discuss how to challenge the decision, according to a person familiar with the matter who spoke on the condition of anonymity to discuss their plans.
They are considering an emergency request to the Supreme Court to block the law from taking effect early next month, the person said. The groups are also considering asking a full complement of 5th Circuit judges to reconsider the case initially decided by a three-judge panel or appealing directly to the high court, potentially forcing a decision that could have broad implications for state legislatures considering legislation similar to the Texas law.
“The fight is far from over, and in the long run we are very confident that any ruling that attempts to legally mandate what viewpoints a private business distributes will not stand,” said Matt Schruers, CCIA president.