Last month, the Supreme Court granted certiorari to review the Fifth Circuit’s decision upholding Texas’s social media anti-discrimination law (HB 20) and the Eleventh Circuit’s decision striking down Florida’s. These cases, particularly Texas’s, present the question of whether the First Amendment allows states to impose common carrier anti-discrimination requirements—which have long required letter carriers, telegraph companies, and telephone companies to provide service to all customers—to social media firms. (Full disclosure: I served as an expert for the State of Texas on the history of common carriage in the NetChoice litigation.)
This question itself reflects a fundamental divide within the conservative movement. On one hand, there are those who, relying on libertarian principles, seek to shield firms that deal with information communications technology from regulation. On the other, there are those who believe the First Amendment is consistent with traditional rules that seek to ensure that communications networks build and support American political and civic institutions.
Texas’s law requires social media platforms to refrain from viewpoint discrimination in their decisions concerning account termination and content management. It doesn’t forbid platforms from prohibiting certain types of content (e.g., profanity, nudity), but it does prohibit platforms from censoring those who advocate certain viewpoints (e.g., that obscenity and naturism are good). Texas’s law follows the longstanding precedent of Anglo-American laws, many still in effect today, that require communications firms—such as letter carriers, telegraph companies, telephone companies, or cable systems—to carry all messages, even those with which they may disagree.
These rules reflect the long-accepted idea that membership in civic society requires an ability to communicate, travel, and engage in commercial activities. As Randy Barnett says, there are “public, non-governmental” places such as restaurants, telephone networks, and banks. The Texas social media law and its advocates hold that neither private nor governmental power should exclude segments of the population from participation in these places in which the basic activities of citizenship are conducted. They go a step further and claim that social media platforms should be counted among these essential public spaces. This camp also points to the mass of public accommodation law—which regulates virtually every retail establishment, hotel, restaurant, bank, and transportation service in the country—as analogous to the social media regulation.
The internet platforms and their supporters argue for an expansive First Amendment right. They say the Texas law infringes on the rights of those in the business of carrying other people’s speech to express their own message by censoring some speech. Thus, critics of the Texas social media law claim that the social media platforms have a free speech right to exercise “editorial judgment” to determine who may use their platforms. For support, they look to Supreme Court precedent in Miami Herald Pub. Co. v. Tornillo, which overturned a Florida law requiring newspapers’ op-ed pages to publish replies to editorials, and Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., which ruled that Massachusetts could not use its public accommodation law to require a parade to include a group whose political and moral message it disagreed with.
But unlike the newspaper editor in Tornillo or the parade organizer in Hurley, social media platforms do not review all content they host in a way intended to express an identifiable message—as Eugene Volokh would say, they do not create “a coherent speech product.” They do not function as editors creating a work that expresses a discernible and particularized message. Rather, content moderation efforts—such as shadowbanning or prioritization according to a secret algorithm—are invisible, and they receive no First Amendment protection because they are not intended to communicate anything. And even to the degree content moderation decisions are visible, the Court has ruled that the First Amendment only protects actions where "an intent to convey a particularized message was present, and . . . the likelihood was great that the message would be understood by those who viewed it.” Even if one could look at all of Facebook’s content moderation decisions for one day, no viewer could possibly string together these millions of actions into a particularized message.
Content moderation is more like the situation in Rumsfeld v. FAIR, where the Court ruled that alleged individual acts of discrimination committed by law schools when hosting on-campus recruiters could not be somehow strung together to create a message worthy of First Amendment protection. The Court realized that the First Amendment cannot protect any and all actions that are conceivably expressive—particularly when it requires the audience to connect temporally and spatially scattered actions and events. After all, if it did, people could claim all-white lunch counters and all-Presbyterian golfing clubs are expressive, rendering the Civil Rights Act unconstitutional.
For our liberties to be real, private commercial powers cannot become censors; rather, those in the business of carrying messages should stick to the business of carrying messages. This was understood long ago and re-learned with successive communications technologies. For centuries, the common carriers, as the main letter deliverers, were required to serve all. One of the first Congress’ laws mandated subsidized rates for newspapers to encourage civic engagement. When Western Union refused to carry press accounts unfavorable to its union busting effort, states passed, and the Supreme Court upheld, laws prohibiting discrimination in the transmission and delivery of telegraphs. Similarly, telephone companies still are obligated to serve all customers without regard to their political affiliations.
Against this long and sensible tradition, critics of the Texas social media law advocate a novel expansion of the First Amendment. They argue that if a message touches your wires, the First Amendment says its “yours” and government cannot regulate its carriage in any way. Beyond having no support in Court precedent, this expansion contradicts basic justifications for First Amendment protection: it doesn’t foster broad-based political discussion or activity, and it limits the expressive ability of 99.9% of Americans.
Perhaps most disturbingly, it encourages collusion with government. As the Fifth Circuit recognized in Missouri v. Biden, and as the Twitter and Facebook files show, the government sees the social media platforms as a fulcrum on which to place pressure to control public discourse by silencing disfavored individuals. For centuries, laws mandating carriage intended to prevent precisely such a result.
It seems as if the real motivation of the opponents of the Texas and Florida social media laws is simply anti-regulatory. Protect business from government. That’s a worthy legal and policy position. But it should be achieved in a way that protects all industries, for instance, by a rollback of the administrative state. In contrast, expanding the First Amendment to protect only industries that transmit words is not principled. It’s dirigisme.
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