Last Friday saw a huge legal development in the area of First Amendment law and its application to social media platforms like Twitter, Facebook, and YouTube. The United States Court of Appeals for the Fifth Circuit, which is the federal appeals court covering Texas, Louisiana, and Mississippi, issued its long-awaited opinion in NetChoice v. Paxton about Texas’s law known as HB 20. That law’s headline feature is its attempt to ban huge social media companies from censoring or blocking users based on their viewpoint. Concerns about privatized and politicized censorship by the social media companies (though it may not be as private as one might think) have been at record levels given the high-profile deplatformings of celebrities, journalists, and most famously, former President Donald Trump.
More precisely, the Texas law attempts to ban social media companies from censoring “a user, a user’s expression, or a user’s ability to receive the expression of another person based on (1) the viewpoint of the user or another person; (2) the viewpoint represented in the user’s expression or another person’s expression; or (3) a user’s geographic location in this state or any part of this state.” It defines “censor” as meaning “to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”
The opinion and its dissent add up to a whopping 113 pages, as there is a lot to consider – and everyone involved seems to know that this case will end up at the U.S. Supreme Court. And because of the powerful political and financial forces that are interested in the decision, a lot of the rhetoric about the case, on both sides, is quite heated.
The opinion and dissent take on a lot of arguments about what should determine the outcome of the case. But there are two key questions that will ultimately answer the question of how and when social media companies can silence or otherwise restrict the speech of their users. These are the questions of 1. whether social media companies are “common carriers,” and 2. whether the exercise of selecting what users and expression to censor is itself a form of expression protected by the First Amendment.
Common Carriers – what are they, and why does this matter?
We deal with common carriers just about every day – you may be using one as you read this. As the majority opinion explains, “the common carrier doctrine is a body of common law dating back long before our Founding. It vests States with the power to impose nondiscrimination obligations on communication and transportation providers that hold themselves out to serve all members of the public without individualized bargaining.” It’s because they are common carriers that airlines can’t randomly refuse to sell you a ticket because they don’t like your hat, that Verizon can’t refuse to hook up your phone because it doesn’t like your politics, or a hotel can’t refuse to rent you a room because you “look sketchy.” And if a company is a common carrier, states (including Texas) have more room to regulate it.
But are social media companies like Facebook or Twitter common carriers? The plaintiff, NetChoice, which is a trade association of major tech companies including the social media giants, argues that they are not, while the Texas legislature determined that they are.
The majority opinion includes a lengthy history of common carrier doctrine by way of emphasizing that as various industries grew more important to daily life and the consequences of making arbitrary decisions about who to serve grew more intense, they came to be regulated as common carriers. Being denied a telephone hookup in 1886, 10 years after its invention, would have a far less deleterious effect on life than being denied one in 1976. And like traditional common carriers, social media companies deal with users as basically interchangeable, without individualized bargaining. Just as you can’t negotiate the terms of your airline ticket agreement, you can’t negotiate the multi-page boilerplate user agreements that we all ignore from tech companies. A company’s status as a monopoly or near-monopoly also makes it more likely to be found a common carrier.
On the other hand, social media companies are, and have been for quite a while, choosier than AT&T’s telephone division about what messages they will allow to be communicated. Indeed, their actions to reject, suppress, and delete various forms of offensive or disfavored expression (as determined arbitrarily by the companies) is the entire reason for Texas’s law. The majority opinion rejects this as circular reasoning – that the platforms say they can discriminate because they are already discriminating – but do we really expect Twitter and Facebook to be neutral conduits of information? And how much does it matter to our personal and even public lives if they aren’t?
In the end, this is going to be a judgment call, likely made by the Supreme Court. It’s also possible that some platforms that support NetChoice end up being deemed common carriers, while others do not. But while this is an important decision, the judgment to be made about the First Amendment analysis is more interesting, and at least as important.
Is selecting what to censor itself a form of protected expression under the First Amendment?
There are five main cases that the Fifth Circuit discusses in analyzing whether or not the efforts to censor made by the social media companies are themselves a form of expression protected under the First Amendment. The majority believes they are not, while the dissent believes they are. Ultimately, the decision will likely turn on how the Supreme Court applies and interprets the precedent it set in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
In the Miami Herald case, a political candidate attempted to sue the newspaper using a 1913 Florida law that provided political candidates a “right to reply” to attacks on him or her in a newspaper, for free, in the same newspaper, and with the reply given equal space and prominence as the attacking article. The Herald refused to print his reply, and the case made it all the way to the Supreme Court.
In a unanimous decision, the Court struck down the law, with Chief Justice Burger writing the opinion. In its concluding paragraph, he writes:
Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.
The dissent in the NetChoice case reads this as being the most similar to what the social media platforms do – that their “censorship” through selecting what may stay on their platforms and what will be boosted is their own editorial judgment, and is protected by the First Amendment:
When the Platforms curate their users’ feeds, which are the behaviors prohibited in Section 7 of HB 20, they are exercising their editorial discretion… If anything, the majority’s research and reasoning supports the Platforms’ contention that First Amendment protections attend the publishing process as well as the actual published content.
The majority, on the other hand, sees what the platforms are doing as significantly different from a newspaper’s editorial decision-making – that the censorship is fundamentally an act unprotected by the First Amendment rather than a form of expression. It points out that unlike in a newspaper, the “editorial discretion” happens after the fact, and inconsistently at that, with more than 95% of user expression totally unaffected by the supposed editors. With regard to a point about how the scale makes it impossible to moderate posts ahead of time, it points out that some large websites, including the New York Times, in fact do moderate comments before posting. And it repeatedly points out public statements made by various CEOs and officials of the social media companies that strongly suggest (or flat-out state) that they are not editors:
They’ve told their users: “We try to explicitly view ourselves as not editors. . . . We don’t want to have editorial judgment over the content that’s in your feed.” They’ve told the public that they “may not monitor,” “do not endorse,” and “cannot take responsibility for” the content on their Platforms. They’ve told Congress that their “goal is to offer a platform for all ideas.” And they’ve told courts—over and over again—that they simply “serv[e] as conduits for other parties’ speech.”
So who is right? Ultimately, again, this has to be a judgment call, and it’s unlikely to get a definitive answer until the Supreme Court takes it up. Whatever is decided, though, will end up being hugely important for the way we communicate both personally and as a society, so expect it to be a blockbuster case. (Though in any case like this, it’s always possible that it will be decided on grounds that don’t give us a clear answer about all of the major issues at play – one of the Supreme Court’s favorite tricks.)
Why should I care?
Whether you call it censorship or editorial discretion, there’s no denying that more people than ever before (in terms of sheer numbers) are being told by authorities somewhere — whether it be in Google’s corporate suites, in a local city council chamber, or in the office of the dean or principal of your school – that they don’t have the right to say what they think, and can be punished for doing so. Being arbitrarily silenced strikes most Americans as wrong on a moral level. When faceless and/or unaccountable authorities unjustly silence you, it doesn’t feel very different regardless of whether the people doing the silencing are public officials or private citizens even if, legally speaking, that’s a very important distinction.
However, if Texas’ law is upheld, or other state laws like it begin to be passed and go into effect, this distinction may begin to erode, at least with regard to social media companies, giving the aggrieved more tools to vindicate their ability to speak out. While the Texas law does not provide for damages – you can’t get money from suing the social media companies, just an injunction intended to stop them from doing so – expect a multiplicity of lawsuits that include such claims. Ironically, however, given how many people (particularly students and faculty members) get in trouble with their institutions for their online speech, a decrease in censorship online may actually lead to an increase in risk for those at institutions prone to punish dissenting views. And, of course, if you are one of those outspoken people who find him or herself in a jam, please don’t hesitate to call or email us here at Allen Harris.
