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‘Element of Politics’

SCOTUS Is Seen Supporting Big Tech Against Texas and Florida Social Media Laws

Expect a U.S. Supreme Court majority to side with the tech industry in its content moderation fight against social media laws in Florida and Texas, experts told us in interviews last week.

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Two cases are scheduled for oral argument Monday: NetChoice v. Paxton (22-555) and Moody v. NetChoice (22-277). SCOTUS was asked to decide whether the First Amendment prohibits Florida and Texas from restricting how social media platforms moderate content.

Laws recently passed in Texas and Florida attempt to ban large social media platforms from removing, moderating or labeling content based on user viewpoint. The states passed the laws following widespread social media bans of then-President Donald Trump following the Jan. 6 Capitol riot. Experts told us it’s likely even governors in those states expect the tech industry to prevail on First Amendment grounds.

A SCOTUS majority “will protect the First Amendment rights of editorial control and discretion of social media platforms,” said Clay Calvert, a professor emeritus at the University of Florida and nonresident senior fellow at the American Enterprise Institute. Calvert said he expects a dissenting opinion from conservative justices, including Justice Clarence Thomas, who has suggested social media platforms could be regulated like common carriers.

A majority of the justices are likely to realize what a dangerous precedent it would set if you allowed states to start interfering with the editorial judgments of online platforms,” said Thomas Berry, a Cato Institute research fellow. “What these governors expect, I can’t read their minds, but I do know there’s certainly an element of politics in both of these laws. Big Tech is currently an enemy to a lot of base voters for the Republican Party.”

Justice Thomas “hasn't really articulated a coherent theory of common carriage beyond musings in unrelated cases,” said TechFreedom Free Speech Counsel Ari Cohn. Supporting that theory would require conservative justices to walk back some of their previous views on net neutrality, he said: For example, Justice Brett Kavanaugh, while a member of the U.S. Court of Appeals for the D.C. Circuit, objected to the Obama-era net neutrality rule because it “infringed on ISPs' right to editorially intervene” in customers' internet traffic. It would be difficult to reverse that position and apply it to social media platforms, he said.

The court would have to ignore a lot of precedent to apply common carrier theory to social media companies, said Eric Goldman, professor at Santa Clara University School of Law. He noted how the court in 2019 rejected must-carry obligations for cable TV stations in Manhattan Community Access Corp. v. Halleck. He noted how the court in 1997 found in Reno v. ACLU that online publishers are entitled to the same speech protections as print and broadcast media.

Expect NetChoice to rely in part on the Supreme Court’s decision in Miami Herald v. Tornillo, experts said. The court in that 1974 case ruled the government can’t force newspapers to carry political candidates' speech, finding a Florida law seeking political neutrality by the newspaper violated the First Amendment. Miami Herald is “very closely on point,” said Berry. “It’s ironic that it was also a Florida law, so we’ve kind of come full circle." The First Amendment “pretty clearly precludes the right" of the state to dictate what speech is carried or what isn't.

Some expect Texas and Florida to argue that if platforms’ editorial rights are recognized they should be considered publishers, which would call into question the content moderation immunity they enjoy under Communications Decency Act Section 230. Questions about immunity are policy questions, not issues of constitutional law, said Berry. Platforms have First Amendment protections regardless, but if states take issue with what’s included in Section 230, they need to deal with that through Congress, he said.

Section 230 is a “speech-enhancing statute,” said Goldman. “It says that online publishers can qualify for the First Amendment's protections and yet not be liable for all of the legal consequences that are imposed on other publishers.”

Even if Congress wanted to, it can’t “simply legislate First Amendment rights out of existence," said Cohn. “Otherwise the First Amendment would be entirely meaningless.”