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‘Hard Issues’

Conservative SCOTUS Justices Weigh Platforms' Common Carrier Arguments

It’s possible social media platforms could be considered common carriers when delivering emails or direct messages, the U.S. Supreme Court's conservative justices said Monday.

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Social media platforms’ First Amendment rights were at issue during oral argument in 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. Both states recently passed laws that attempt to ban large social media platforms from removing, moderating or labeling content based on user viewpoint (see 2402230040).

Chief Justice John Roberts and Justices Neil Gorsuch, Samuel Alito and Amy Coney Barrett suggested one could argue that email and messaging services function as conduits of information like phone carriers and railroads. Such a distinction could jeopardize social media platforms' ability to edit or censor emails and direct messages.

Decide the common carrier questions later, NetChoice attorney Paul Clement of Clement & Murphy, urged the high court. The bottom line, he said, is that content-moderation laws in Florida and Texas violate the First Amendment, and that SCOTUS should block both. The court isn’t being asked to decide whether email and messaging services are constitutionally protected, he said. Instead, the issue is that when a social media company bans a user or blocks content, it’s an expressive act protected under the First Amendment, he said. Laws in Florida and Texas would restrict that right, and therefore they violate the First Amendment, said Clement.

On common carriers, Clement noted that a federal judge shot down similar arguments about emails when the Republican National Committee sued Google over Gmail allegedly sending RNC political emails to user spam folders.

But Justice Ketanji Brown Jackson suggested platform protections should be considered based on the functionality of the communication in question. Facebook’s Messenger service functions much like an email service, she said. However, she argued that even common carriers have First Amendment protections. The states want to make this case about platform conduct, but there’s speech involved, she said.

The tech industry argued in two previous Supreme Court cases that their algorithms are politically neutral tools for delivering information, Florida Solicitor General Henry Whitaker told the court. Companies made this argument to absolve themselves of responsibility for content allegedly promoting ISIS content at question in Gonzalez v. Google (docket 21-1333) (see 2302210062) and Twitter v. Taamneh (docket 21-1496), he said. Now, the tech industry is trying to take credit for making expressive editorial decisions in moderating content, he said. For instance, Twitter in the Taamneh case argued it wasn’t aware of all ISIS material on the platform, he said: “It’s a strange kind of editor that doesn’t even know the material that it is editing.”

Tech companies have also potentially taken an opportunistic approach when it comes to Communications Decency Act Section 230, Justice Clarence Thomas suggested. For the purposes of Section 230, companies have argued they’re more like conduits of information, thus avoiding publisher liability, he said. But with the laws in Florida and Texas, they’re pointing to expressive conduct as a reason for First Amendment protection, said Thomas. This claim of editorial expression seems to undermine the Section 230 argument that platforms aren’t publishers, he said. Similarly, Gorsuch took issue with what he saw as conflicting claims for First Amendment protection and Section 230 immunity.

Tech platforms have both First Amendment protections and liability protections under Section 230, Clement said. The intent of Congress passing Section 230 was to promote good-faith content moderation, so companies would remove harmful material without fear of liability, he said. These are “hard issues,” said Clement. Ultimately, Section 230 would be self-defeating if platforms weren’t incentivized to moderate content, he said: The bottom line is that the laws passed in Florida and Texas are unconstitutional.

The First Amendment protects entities that curate third-party content from government censorship, argued U.S. Solicitor General Elizabeth Prelogar, siding with NetChoice. Like newspapers, web designers and parade organizers, social media platforms have free speech rights, she said: Content moderation is “inherently expressive” activity. Phone and delivery companies are different because they aren’t producing an expression, so they don’t merit First Amendment protections to block certain communications, she said.

Social media platforms shouldn’t be able to discriminate based on viewpoint, just as Western Union wasn’t legally allowed to throttle pro-union messages sent through its telegraph service, said Texas Solicitor General Aaron Nielson. The social media law in Texas is a “modest effort” to address issues of viewpoint discrimination happening on social media on a massive scale, said Nielsen. The courts recognized Western Union’s censorship as conduct, and so should the Supreme Court when considering social media censorship, he said.

Justices Elena Kagan and Sonia Sotomayor questioned Nielsen’s arguments. Sotomayor took issue with broad-ranging laws like those in Florida and Texas because they “stifle speech just on their face.” Texas is attempting to tell private companies how they can tailor their services based on community guidelines, which is a violation of the companies’ free speech rights, she said.