GOP Social Media Censorship Laws Are Headed To The Supreme Court. These Liberal Law Professors Don’t Want Them Struck Down.

In 2021, Republicans in Florida and Texas enacted new laws limiting the ability of social media companies to moderate and remove content from users. The laws came amid a wave of real and perceived censorship of conservative viewpoints on sites like Facebook, Twitter, Instagram and YouTube, including the removal of former President Donald Trump from such sites following his attempt on Jan. 6 of that year to illegitimately remain in power.

The laws were broadly opposed by Democrats and the tech industry, which sued in federal court to have them found unconstitutional. Those cases, known as Netchoice v. Paxton and Moody v. Netchoice, will be heard by the Supreme Court on Feb. 26.

But in a brief filed with the court, a host of left-leaning lawyers and historians argue that while the laws at issue may have serious flaws, the remedy offered by the tech companies would, in many ways, be even worse. The brief was organized by the anti-monopoly group American Economic Liberties Project and joined by former White House economic adviser Tim Wu, former Democratic Party political candidate Zephyr Teachout, pioneering internet law professor and onetime Democratic presidential candidate Lawrence Lessig, Columbia University history professor Richard John and Emory University law professor Matthew Lawrence.

“There’s a bigger issue going on here,” Lessig says. “And that’s whether the First Amendment is going to be used to disable all regulation of life online.”

Former Democratic congressional, gubernatorial and attorney general candidate Zephyr Teachout, right, and former Biden administration economic adviser Tim Wu, left, are two of the lawyers arguing that the Supreme Court should uphold the Florida and Texas laws.

At issue is how the court should conceive of digital platforms and whether they should be regulated like communications infrastructure, like shopping malls or like newspapers, which have “editorial discretion” in deciding what content is published or promoted on their pages. Netchoice, the Big Tech lobbying group challenging the laws, wants the court to extend this to tech platforms. This would provide a powerful constitutional shield from practically all regulation targeting tech companies and online commerce by providing free speech rights to the decisions made by such companies when they suppress, remove or ban content as they see fit.

The lawyers and historians who joined the brief see the analogy of digital platforms to newspapers as “a category error.”

“[T]he blocking of objectionable content is simply not the same category as selecting what stories appear on the front page of a newspaper; it is more akin to the blocking of objection[able] fliers by a mall owner, or the censoring of objection[able] content by a cable operator,” the brief states.

To make their analogy to malls, the brief points to the 1980 Supreme Court precedent in Pruneyard Shopping Center v. Robins. That decision found that states may provide greater speech protections to their citizens in privately owned properties that are open to the public, like shopping malls.

The case involved a group of students in California, who sought signatures for a petition to oppose a United Nations statement that classified Zionism as “a form of racism and racial discrimination.” The students wanted to access the Pruneyard shopping mall to petition for signatures, but were kicked out by security. They sued, claiming that the California constitution offered positive speech rights allowing them to enter businesses held open to the public and exercise their political speech rights. The mall argued that it had the right to exclude speech from its premises as it saw fit. The Supreme Court agreed with the students, ruling that the state had the right to protect speech in privately owned spaces, so long as those protections are applied in a neutral manner.

Social media companies want the Supreme Court to prevent states from regulating them.

“PruneYard … stands for the precedent that a business owner’s right to exclude the public is subject to reasonable restrictions by the state — even if those restrictions force a company to platform speech it finds abhorrent,” the brief states.

That is what Florida and Texas have done with their social media laws, the brief argues. Since digital platforms, like malls, hold themselves open to the broader public, states should be allowed to protect the speech rights of their citizens to participate on those platforms so long as the laws protecting that participation are applied neutrally.

In this way, the Florida and Texas laws are like the long history of nondiscrimination and common carrier laws, like those that require telephone companies to not discriminate against or preference one caller over another; the late-19th-century Granger laws that banned railroad companies or grain elevator companies from discriminating or preferencing in favor of one farmer or one company over another; or the net neutrality principle, which was coined by Wu, that forbids internet providers from preferencing one website over another.

“The law contains a facially neutral nondiscrimination provision — forbidding treating users differently in the commercial spaces that serve as modern-day public squares, which their owners open to anyone with access to the Internet,” the brief states.

The problem, they say, with granting digital platforms a blanket immunity from regulation through the First Amendment is that the so-called “editorial discretion” used by tech companies could apply in ways far behind anything even remotely analogous to newspapers.

Florida Gov. Ron DeSantis responds to a local TV reporter's question after he signed legislation to make it harder for social media companies to punish users who violate terms of service agreements, on Monday, May 24, 2021.

For example, Meta’s Instagram and Facebook platforms could argue they have the right to suppress pro-Palestinian content. It could extend to preventing states from enacting privacy rules to protect kids online, as California, Ohio and Utah have already done. It could be used to protect algorithms, which the tech companies argue are a form of protected speech, that power social media and artificial intelligence from regulation or transparency laws. And it could even include Amazon preferencing its own products over those offered by small businesses on its platform, thus blocking the adoption of antitrust laws like the bipartisan American Online Innovation and Choice Act.

“We’re concerned that Netchoice can use debate over the law in order to enshrine privileges that could have unforeseen consequences,” John said.

But notably, while the authors of the brief want the Supreme Court to reject Netchoice’s arguments, they make no claim to support the laws as written by Republicans in Florida and Texas.

Those laws “are sloppy and read more like propaganda than carefully considered legislation,” Teachout writes in The Atlantic. 

Instead, they suggest better laws are needed. “If you don’t like the Texas law, the solution is not to throw out our ability to regulate social media companies altogether,” said Lee Hepner, legal counsel for American Economic Liberties Project. “That is throwing the baby out with the bath water.”