First Amendment First Amendment Freedom to Discriminate When It Comes to the End of the Internet: a case study in the U.S. Supreme Court

This fact has not gone unnoticed. Texas wrote a law a few years ago to protect big tech companies from discriminating when it comes to taking posts off their social media platforms. Two advocacy groups funded by Facebook, Google, Twitter and other companies sued almost immediately, arguing that they have a First Amendment right to remove whatever they want from their platforms for any reason, sort of as an editor might if she were choosing which articles to run in her print magazine every month. The case will be argued on Monday at the Supreme Court and it raises a tricky constitutional question.

On the average day, 95 million pictures are uploaded on social media sites, along with 34 million videos and hundreds of millions of followers. Some go viral while others don’t. And some percentage — the numbers are unclear — are taken down for violating the content rules set by the platforms. With the amount of posts and videos, it is no wonder that the rules for social media are the most important on the planet, keeping what can and cannot be said online safe.

Understanding what the tech companies are asking for is important. Nearly everything TikTok or Instagram does involves moving and sorting information, even if it is just displaying search results or quietly collecting your personal data. The tech giants are pushing the simplistic position that any such conduct is “speech” (and any sorting or blocking of that speech is “editing”). If the justices buy this argument, they would be granting constitutional protection to nearly anything a social media platform does, putting both their actions — and those of tech companies more broadly — beyond the reach of lawmakers who want to constrain them. Doing so would create a kind of immunity verging on sovereignty that it is hard to imagine the framers of the Constitution ever intended.

The Importance of Fair Trade Practices for the Public Interest in Netchoice: Commentary on the Effort and Predictions of the High Court

They were hoping to get rid of NetChoice so they could focus on a new issue. “And that’s not going to happen based on what I heard today.”

Netchoice was given the opportunity to prevent similar laws from popping up around the country, but it seemed to be a hang-up for some justices because of the risk of creating an industry that would not be regulated.

The laws do not just prohibit discrimination but also require sites to reveal aspects of how they moderate. Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, noted in an emailed statement that the justices did not spend much time discussing these transparency requirements. How the court addresses those provisions could decide whether the laws can be constitutional, he said.

The general counsel of the Woodhull Freedom Foundation said during a press conference that the case could travel that path. I think the justices were interested in finding out what options they had before making a landmark decision.

The justices might choose to remand the cases to the lower courts to get a more developed record, which would allow the cases to reach the top court at a later stage, with more discovery and understanding of how they would apply in different situations.

The justices have to figure out who is to blame and what should happen with the cases because they came in an all or nothing posture. “If I had to guess, I would predict that the court will issue relatively narrow rulings that make it clear that the most restrictive portions of the state laws are unconstitutional, and then let litigation play out to determine whether other provisions of these laws — or of other future laws — are constitutional.”

The factual record in the cases wasn’t developed enough to make up for the court’s problem with limits of the law. NetChoice challenged the laws early on and sought preliminary injunctions to stop them from taking effect.

The court could develop some sort of standard to say which companies can be subject to laws like Florida’s and Texas’, even while skirting thorny questions like whether social media sites are common carriers akin to delivery trucks or telephone companies. One option would be to explain what makes a company eligible to exercise editorial discretion based on the “expressive nature of their business,” Hans said.

“The Court, I think, realizes that either their deregulatory First Amendment approach has had downsides, or if they took that traditional approach in this case, it would insulate so much of the economy from regulation, which is maybe a bridge too far for this court,” Hans said. “So that, I think, goes to why there was so much discussion of Uber versus Etsy versus Gmail versus Facebook — really trying to figure out what the lines are here.”

The justices repeatedly discussed how NetChoice made a “facial” challenge against the social media laws, meaning it argued they have no possible constitutional application. To say that the laws are unconstitutional when they are applied to a specific set of companies or circumstances would be wrong.

During Monday’s Supreme Court arguments in a pair of consequential social media cases, the justices prodded for ways they could rule without giving either side everything they asked for.