Supreme Court action yields surprising clues about social media regulation


[This piece has been published in Restoring America to highlight how a recent Supreme Court decision could affect Big Tech and Americans’ right to free speech.]

As both the Left and Right push for greater regulation of online speech —
for very different reasons
— a Supreme Court showdown between social media regulation and the First Amendment seems inevitable. A recent decision about Texas’s social media law,
HB20
, yields some surprising clues about how the law may develop in this area. Texas lost this round, as the court blocked the law from taking effect until litigation below is resolved. But the dissent has given conservatives some hope that their quixotic mission may yet succeed.

Texas’s Social Media Law

HB20 prohibits large social media companies from censoring user speech on the basis of viewpoint. NetChoice, a tech trade association, challenged the law on First Amendment grounds. The trial court entered a preliminary injunction, blocking the law from taking effect until the case was complete. But surprisingly, the Fifth Circuit Court of Appeals
stayed the injunction
without explanation, which allowed HB20 to go into effect immediately.

The Supreme Court Speaks (Cryptically)

NetChoice
swiftly asked the Supreme Court
to vacate the Fifth Circuit’s stay. Traditionally, the court rarely grants these emergency orders, preferring not to interfere in live cases below (though that norm has been eroded somewhat in recent years). Despite this, the court granted NetChoice’s application, which restored the injunction until the case is decided. But importantly, the order was not unanimous: Justice Samuel Alito
wrote a dissenting opinion
joined by Justices Clarence Thomas and Neil Gorsuch. Justice Elena Kagan also dissented without comment.

The court’s ruling could be a tacit endorsement of NetChoice’s argument that regulating social media content infringes on platforms’ First Amendment right of editorial control. As
I discussed elsewhere
, prior cases have recognized that free speech includes decisions such as what content to include and how to prioritize among issues — decisions that platforms make countless times daily.

But perhaps more interesting is Justice Alito’s discussion of Texas’s counterarguments. Other than
Justice Thomas
, few judges have previously endorsed Texas’s assertion that states can regulate social media companies as common carriers and therefore require them to serve all comers on equal terms. And importantly, Justice Alito explicitly
notes
that he “[has] not formed a definitive view on the novel legal questions” that Texas raises. But the fact that three justices consider these “novel legal questions” rather than well-settled law is itself a notable shift in the grounds of debate.

Analyzing Texas’s Argument

Justice Alito referenced two key cases supporting Texas’s argument. The first is
PruneYard Shopping Center v. Robins
, a 1980 decision allowing students to leaflet at a mall over the mall owner’s objection. The court explained that while protesters do not have a federal First Amendment right to trespass on private property to engage in political speech, a state law granting such rights (there, under the California constitution) did not intrude on the mall owner’s First Amendment rights. The second is
Turner Broadcasting System v. Federal Communications Commission
, which upheld a law requiring cable companies to include certain unpopular broadcast stations as part of the cable package.

While these cases seem persuasive, there are good arguments for why they are distinguishable. The PruneYard court noted explicitly that the mall was not in the business of making editorial judgments about disseminating speech. Indeed, the mall owner didn’t object to the content of the students’ protests; he just wanted them to buy insurance against harm they could have caused. By comparison, content-based editorial judgments lie at the core of social media business operations. And PruneYard stressed that the mall owner retained the power to impose reasonable time, place, and manner restrictions on the protesters so they would not interfere with the mall’s commercial functions. HB20 explicitly denies social media companies the power to place reasonable restrictions on disruptive speakers.

Similarly, Turner involved the complex business relationships between legacy over-the-air broadcasters and an increasingly dominant cable industry. In Turner, the court agreed that cable providers had First Amendment rights, and it applied heightened scrutiny to evaluate the must-carry law — a fact that somewhat undercuts Texas’s position. The court
upheld
the law because the cable company controlled the wires into the home and thus possessed “bottleneck, or gatekeeper, control” over television programming to consumers. Social media lacks comparable market power. Twitter cannot unilaterally block a user from all social media, let alone other forms of online communication.

Of course, one word in Justice Alito’s opinion is the most legally significant: “dissent.” And when reading the tea leaves about the court’s thinking, it’s important to note not just what was said, but also what was not said. Six justices declined to engage Texas’s arguments except by rejecting them (for now). Nevertheless, the dissent signaled a willingness to do so, which is the first real glimmer of hope conservatives have seen in this fight. The First Amendment landscape appears more complicated now than it did a week ago.

This article originally appeared in the AEIdeas blog and is reprinted with kind permission from the American Enterprise Institute.





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