Big Tech has no constitutional right to censor

Social media stocks have taken a beating this year, but it’s nothing compared to the smack-down their companies recently received in court. “We reject the idea that corporations have a First Amendment free rein to censor what people say,” the Fifth U.S. Circuit Court of Appeals declared in its Sept. 16 decision upholding Texas’ anti-censorship law.

The legal battle over whether states can restrict such behavior may soon be brought to the Supreme Court, as Florida appealed an 11th Circuit ruling last week that struck down its anti-censorship law.

Social media companies are also asking the justices to provide desperately needed constitutional clarity. They argue, in short, that removing user content from their platforms is an exercise of editorial judgment and expression protected by the First Amendment. Ergo, states cannot tell them that they cannot censor.

Not so fast, writes Fifth Circuit Judge Andrew Oldham for a divided three-judge panel in a stirring 90-page opinion. Texas law prohibits major social media platforms from blocking speech based on viewpoints. So users couldn’t be deplatformed by Twitter because they declared themselves skeptical of vaccines or climate change. YouTube also failed to demonetize such videos.

However, the law excludes speech not protected by the First Amendment, such as solicitation, as well as speech covered by Section 230 of the Communications Decency Act—i.e. speech deemed to be “indecent, indecent, lascivious, filthy, excessively violent, harassing or otherwise offensive.”

Users who believe they have been unlawfully discriminated against can sue the companies. Although they would not be eligible to receive damages, they could be reinstated if they prevail. Many users would nonetheless lose if a court finds their expression to be “offensive” under Section 230’s catchall. But social media companies would not be the final arbiters of what is objectionable.

Judge Oldham emphasizes that Texas law seeks to regulate business conduct — not speech — under the “common carrier doctrine,” which holds that the government can impose nondiscrimination obligations on businesses “affected by the public interest.” During the 19th century, states imposed obligations on telegraph companies with common operators. ” Western Union,

the largest telegraph company, sometimes refused to carry messages from reporters competing with its ally, the Associated Press—or charged them exorbitant rates,” Judge Oldham notes.

States and later Congress intervened to prohibit telegraph companies from discriminating against shipping. The Supreme Court in 1896 rejected a constitutional challenge to a state common carrier law.

Justice Clarence Thomas wrote last year that “the long history in this country and in England of limiting the right of exclusion to common carriers and places of public accommodation may save similar rules today from triggering heightened scrutiny” under the First Amendment, “especially where a restriction would not prohibit the company from speaking or compel the company to support the speech.” Neither does Texas law.

The Fifth Circuit cites two Supreme Court precedents supporting the constitutionality of Texas’ law. IN PruneYard Shopping Center v. Robins (1980), a shopping center challenged a California law requiring privately owned shopping centers to permit the distribution of pamphlets on their premises. The mall argued that a “private property owner has a First Amendment right not to be compelled by the state to use his property as a forum for the speech of others.” The court disagreed.

Recently, law schools have i Rumsfeld v. Forum for Academic and Institutional Rights (2006) challenged a federal law that denied funding to schools that did not give military recruiters “access to students that is at least as high in quality and scope as the access afforded other potential employers.” The court ruled unanimously that the law did not infringe on the schools’ free speech rights.

Social media companies cite Miami Herald v. Screw (1974), which struck down a Florida law requiring newspapers to print candidates’ rejoinders to critical editorials. But by asserting a right to editorial control, they are trying to have it both ways. As Judge Oldham notes, “They have told the courts—over and over again—that they simply ‘serve[e] as channels for the speech of other parties.’ ”

Newspapers and broadcasters exercise strict control over the content they publish and are legally liable for defamation. Social media platforms dos and don’ts. Article 230, in the protection of platforms’ right to block and screen objectionable material, specifies that they should not be “treated as a publisher or speaker” of content generated by users.

Social media companies want to be able to censor speech they don’t like without bearing the legal risks and responsibilities associated with being a publisher. But why should the courts let them?

Judge Oldman points out that Texas’ law differs from Florida’s in a few key ways that could make the latter more legally vulnerable. First, Florida law specifically prohibits platforms from censoring candidates for public office or content about them, as well as “journalistic enterprises.” This content-based regulation may trigger increased First Amendment scrutiny.

Both the Texas and Florida laws are innovative solutions to technical censorship, and they may not get it quite right. But state laboratories of democracy are meant for experimentation.

Journal Editorial Report: Democrats have turned the emergency into a political opportunity. Image: Joshua Roberts/Getty Images

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