Social Media Companies Defend their First Amendment Right to Censor Americans

The U.S. Supreme Court in Washington on Feb. 8, 2024. Julia Nikhinson/Getty Images

As the Supreme Court considers the constitutionality of laws in Florida and Texas that would regulate social media companies’ practice of blocking content, tech companies have been standing up for what they claim is their First Amendment right to control speech on their platforms.

The case has split free-speech advocates into two camps, both of which argue that they are the true defenders of free speech.

NetChoice, an industry group that represents social media companies and the plaintiff in the case, touts the right of private companies to censor as they see fit, while Texas and Florida officials argue that users of social media platforms must not be excluded from service because of their political, religious, or scientific views.

After watching the court’s hearing of oral arguments on Feb. 26, many legal analysts have concluded that tech companies will likely win the day. The cases are Moody v. NetChoice and NetChoice v. Paxton, regarding the Florida and Texas laws, respectively.

Speaking on behalf of the social media companies, Steve DelBianco, founder and CEO of NetChoice, stated after the hearing, “I feel great about how things went.”

“I believe we’ve created a perfect storm of cases, and the Supreme Court will have an opportunity to erect a real wall to signify what the First Amendment is,” Mr. DelBianco told attendees of a Feb. 28 Cato Institute conference on the case.

“The first foundation in that wall, in our cases, is to say that this wall prevents the government from directly and formally forcing us to carry speech we don’t want to carry or to take down speech we prefer to keep up.”

Harvard law professor Rebecca Tushnet, who specializes in First Amendment cases, concurred, stating that “if the states can impose this kind of regulation on platforms, we will know that the past 70 years or so of First Amendment jurisprudence can no longer be relied on in any real way.”

Free Expression or Discrimination?

But proponents of the state laws say they do not restrict social media platforms’ ability to speak, but rather their ability to deny service because of customers’ viewpoints.

The Texas law, HB20, would also require the platforms to clearly state their terms of service and to explain to customers how they violated those terms in the event they choose to censor them.

“The First Amendment has been invoked as the refuge of last resort for discrimination, whether by restaurateurs, hoteliers, or those who ‘commercially operate’ private schools,” Texas Attorney General Ken Paxton stated in an amicus brief in support of the Texas law. “But the court has firmly rejected such attempts to enshrine a right to discriminate—on at least one occasion calling the argument ‘patently frivolous.’

“Having achieved market dominance, the Platforms have begun to retreat from their neutrality assurances,” Mr. Paxton stated. “For example, X has argued for ‘an absolute First Amendment right to remove anybody from its platform, even if doing so would be discriminatory on the basis of religion, or gender, or physical disability, or mental disability.’”

Florida and Texas passed their anti-discrimination laws in response to allegations that the social media platforms, which carry an enormous amount of public discourse and information-sharing, are censoring content that conflicts with progressive narratives. States that passed these laws charge that tech oligopolies are doing this in ideological lockstep with one another, and at the behest, not only of government officials, but of the Democratic Party.

One of the more notorious cases of social media censorship occurred during the 2020 election when Twitter and Facebook blocked reports by New York Post of content on a laptop owned by Hunter Biden, the son of then-candidate Joe Biden. The news was blocked for more than two weeks until October 30, just days before the presidential election. That election was unique in that, due to the COVID-19 pandemic, 60 percent of voters voted early or by mail, meaning that many of them had already voted by that time.

Facebook founder Mark Zuckerberg later admitted that his company blocked the New York Post at the urging of the FBI. But defenders of the social media companies dismissed concerns over social-media censorship, suggesting ulterior motives for the state laws.

“If you think back to the election of 2020 and the Hunter Biden laptop scandal, and the degree to which some social media sites, for days or perhaps hours, would reduce the amount of sharing of the Hunter Biden story because they wanted to ensure that it wasn’t hacked material or terrorist-disseminated information, well that gave rise to quite a bit of resentment from Trump followers and voters,” Mr. DelBianco said.

“That was not lost on [Florida] Governor Ron DeSantis, who had significant political ambitions and believed one way to seize the affections of Trump followers was to quickly punish the big tech companies that had de-platformed Trump after January 6th,” he said. “That was the political origin of the Florida law.”

‘Wholesale Suppression’ of Speech

Despite such assurances, however, some legal experts still have concerns.

Philip Hamburger, a professor at Columbia Law School, argued in an op-ed on Feb. 25 that allowing social media companies to continue to silence viewpoints they or the government dislike could lead to what he calls “wholesale suppression” of speech in America.

“The government used to suppress speech in a retail manner by prosecuting individuals in the courts, which meant the government had to sustain the burdens of proof and persuasion against particular individuals responsible for particular writings,” Mr. Hamburger writes.

“Now, however, government just asks social media platforms to suppress speech, and because they are chokepoints for much public communication, they offer the government the opportunity for highly effective wholesale suppression.”

The government no longer needs to prove a case in court in order to silence individual Americans, he wrote. On the contrary, the burden is now on Americans to prove in court that they have been wrongly silenced.

“Never before has suppression been so easy or resisting it so difficult,” he stated.

Another case currently before the Supreme Court regarding social media censorship, Murthy v Missouri, stems from a lawsuit brought by attorneys general from Missouri and Louisiana, charging that the Biden administration compelled social media companies to censor content the government disapproved of, such as posts that contradicted official narratives on COVID-19 origins, vaccines, and treatments.

Newspaper or Phone Company

Legal observers say the NetChoice cases will likely turn on how the Supreme Court decides that social media companies should be regarded. Faced with a plethora of analogies, the Court must decide: are the platforms more like newspapers, printing presses, telephone companies, or telegraph lines?

“The big issue here is what we analogize social media platforms to,” Ashutosh Bhagwat, professor at UC Davis School of Law, told Cato attendees. “NetChoice wants to, I think correctly, analogize them to newspapers, and we certainly have precedent going back to the ‘70s saying newspapers get to decide what to publish.”

If social media companies are publishers, then Texas and Florida laws would most likely be considered unconstitutional, he said. But if they are common carriers, like phone companies for example, then laws requiring them to serve customers equally would likely stand.

“Certainly telephone companies don’t choose who their customers are,” Mr. Bhagwat said. “The difficulty is, of course, when you have a wholly new technology, all analogies are imperfect.”

To some, social media companies appear more like chameleons, shifting their colors depending on which shade is most likely to evade oversight.

Mr. DelBianco recounted his testimony before Texas lawmakers, in which he asked them, “Could you enact a law that would force the local newspaper to carry your op-eds?”

“The chairman answered, ‘Well, of course not,’” Mr. DelBianco said, “and I said, ‘So what makes you believe you could force Facebook, Twitter, and YouTube to carry content that they don’t want to carry?’”

While social media companies argue in these two cases that they are publishers, they are also quick to defend Section 230 of the Communications Decency Act, passed in 1996, which protects them from liability for content that appears on their sites, specifically because they are not publishers, but carriers.

The Act states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

But tech company proponents say Section 230 is irrelevant to this case.

“I believe we were able to show that Section 230 really has nothing to do with the First Amendment protections that we’re asserting,” Mr. DelBianco said.

The ‘Dark Side’ of Tech Revolutions

Proponents of the Texas and Florida laws, however, say that social media companies are common carriers and don’t have the right to refuse service to customers based on their religious beliefs or political views.

Paxton cited the historical precedent of telegraph companies that revolutionized communication in the 19th century.

“This revolution, however, had a dark side,” he stated, as the companies that controlled telegraph lines used their power to manipulate the flow of information. He cited the example of Western Union, which refused to carry messages that competed with its affiliate, the Associated Press.

In response, states, and later the federal government, passed laws to require telegraph operators to transmit speech “with impartiality and good faith,” Mr. Paxton stated. “And like the telegraph companies of yore, the social-media giants of today use their control over the mechanics of this ‘modern public square,’ to direct—and often stifle—public discourse.”

The Fifth Circuit agreed with Texas, ruling in September 2022 that the Texas law was constitutional. NetChoice then appealed to the Supreme Court, which is expected to deliver a ruling on this case before the summer.