The US Supreme Court is poised to consider a question with seismic consequences for online speech. Over the past year, laws in Texas and Florida have set up a legal battle over whether the First Amendment protects social networks’ right to curate user-generated content or whether these sites should be treated more like phone companies, required to host nearly any speech their users post. The courts’ split reflects a deepening shift in how to interpret a basic constitutional right, filtered through a political culture war and backlash against large web platforms.
For years, sites like Facebook and YouTube have broadly assumed that moderation decisions are protected by the First Amendment. But, last month, the Fifth Circuit Court of Appeals made a surprise ruling over Texas’ HB 20, a law that bans large apps and websites from moderating content based on “viewpoint.” The court ruled against NetChoice and the Computer & Communications Industry Association (CCIA) and let the law go into effect, sending the groups scrambling to file an emergency Supreme Court petition. That petition was granted — temporarily blocking the law but also offering a preview of a seemingly inevitable Supreme Court battle.
“I would be surprised if the court doesn’t take this up.”
“I would be surprised if the court doesn’t take this up,” says Ari Cohn, counsel at the libertarian-leaning nonprofit TechFreedom — one of roughly 30 groups that supported the petition. The Fifth Circuit still hasn’t decided on the law’s merits, but it seems highly sympathetic to Texas’ reasoning. And that reasoning conflicts directly with a May ruling from the Eleventh Circuit Court of Appeals, which blocked Florida’s similar law. Barring a sudden and massive shift, “it’s almost inevitable this is going to create a circuit split and go up next term,” says Cohn.
The central issue is whether the government can regulate how social networks sort and remove legal content. Opponents argue that curating posts and setting community standards involves private companies exercising a constitutional right to speak (or not speak, in the case of content bans). Supporters compare the sites to shopping malls or telephone networks, whose First Amendment rights are limited.
But both sides so far are leaning on old cases involving non-digital spaces and tech, and the Texas law in particular repurposes legal terms outside of even relatively recent judicial context. It designates social networks as utility-like common carriers, a label that federal rules explicitly avoid applying to internet service providers — let alone websites. And it also bans “viewpoint discrimination,” a term the Supreme Court has used to describe unlawful government restrictions on speech but that Texas lawmakers have treated as synonymous with private companies moderating conservative content.
A Supreme Court ruling in favor of Texas could make that legal repurposing stick, and its implications would go far beyond Facebook banning former President Donald Trump. Democratic politicians have discussed punishing the spread of health misinformation or other harmful but legal speech. And, depending on how it’s written, the ruling won’t necessarily just apply to the biggest social media companies. Even Texas’ law, which applies to services with 50 million monthly active users, would likely scoop up non-“Big Tech” sites like Yelp or Tumblr.
“This is not a great opportunity to talk about free speech”
Texas and Florida politicians have also taken the unusual step of describing their bills as conservative weapons against the alleged liberal bias of tech companies. To Nora Benavidez, senior counsel at media advocacy group Free Press, that makes them a risky place even for good-faith debate over the First Amendment — and makes any Supreme Court decision particularly fraught. “This is not a great opportunity to talk about free speech, because this is not the way to appropriately regulate the First Amendment. There are ways that that can be done,” Benavidez says. “A state’s partisan interest in protecting certain speech is not one of those avenues.”
Benavidez acknowledges real concerns around large social networks, which have tremendous power to shape speech online — in some cases literally changing the way a generation talks. But a ruling that their community standards aren’t protected speech, she argues, would have catastrophic consequences. “People who are supportive of HB 20 imagine that the law will help protect speech,” she says. “In reality, governments dictating what private actors can and can’t do, and essentially picking and choosing speech that is acceptable, is a precursor in every country around the world to totalitarianism, authoritarianism, and the demise of democratic engagement.”
For a hugely consequential law, however, HB 20 has moved between courts with a marked lack of explanation. The Fifth Circuit declined to offer a rationale for its decision, and the case flowed through the Supreme Court’s “shadow docket” emergency petition system — something NetChoice and the CCIA called a necessity after the Fifth Circuit’s abrupt decision but that resulted in only a short dissent from Justice Samuel Alito and no majority opinion.
“This case has been anything but normal,” says Cohn. “There has definitely been a dearth of information from the majorities at every level except the district court level.”
“It’s really hard to make predictions on the basis of the decision we have so far”
That’s left court watchers speculating about what last week’s 5–4 vote means. “It’s really hard to make predictions on the basis of the decision we have so far, because the majority didn’t issue an opinion,” says Alex Abdo, litigation director at the Knight First Amendment Institute at Columbia University. Alito’s dissent, which was co-signed by the Republican-appointed justices Clarence Thomas and Neil Gorsuch, emphasized that he hadn’t reached a conclusion on the law. Former President Barack Obama appointee Justice Elena Kagan voted against the decision without signing — a move several experts suggested might be a protest against the controversial shadow docket itself but also said was still open to interpretation.
Columbia Law School professor Philip Hamburger, who filed one of the two legal briefs supporting HB 20, believes that this early vote simply doesn’t say much about the law’s prospects. “Justice Alito hinted that the Supreme Court vacated the stay simply because the case is so important,” he tells The Verge. “It did not resolve the constitutional question.”
CCIA president Matt Schruers contends that there’s little ambiguity. “I think we have five members of the federal judiciary who have made unmistakably clear their views, and they’re all aligned that a Fairness Doctrine for the internet is not constitutional.” He also disagreed with the idea that courts haven’t spoken clearly on the law. “We have gone three for three in federal court,” he said — referring to district court opinions in Texas and Florida plus the appeals court decision in Florida, all of which have largely rejected the states’ reasoning.
“We have gone three for three in federal court.”
Other critics of the law aren’t as optimistic. “I don’t agree with every First Amendment argument the platforms are making, but the central argument they make — that they have a right and their users have a right for the platforms to enforce community norms of their choosing — is an incredibly important right for free speech online. And the three justices in the dissent seem ready to reject that argument,” says Abdo. Justice Thomas in particular is a well-known proponent of some novel legal theories about internet law, and he seems likely to favor arguments for regulating social media.
Beyond the pressing question of whether sites can be required to carry certain content, the court could address more nuanced questions about what the First Amendment might protect. As Will Oremus of The Washington Post discusses, the Eleventh Circuit let parts of Florida’s law stand, saying that limited regulation like transparency requirements doesn’t necessarily violate speech rights. The Knight Institute in particular has praised that nuance, saying it “properly rejects the platforms’ argument that the First Amendment insulates them from all regulation.”
The current First Amendment landscape: “just plain weird”
The recent court decisions are part of a political and cultural landscape where the First Amendment’s interpretation may be increasingly up for grabs. In a recent University of Chicago Law Review Online analysis, law professors Evelyn Douek and Genevieve Lakier noted that “First Amendment politics are more complicated, uncertain, and, well, just plain weird than they have been in a long time” — partly because of things like the Fifth Circuit’s surprising decision and partly because of larger cultural and technological shifts.
Abdo compares the brewing Supreme Court showdown over speech to the past decades’ fights over digital privacy and surveillance — culminating in decisions that set a promising precedent for a new era. “Over the past 15 years, the Supreme Court has been called on to answer the question of how the Fourth Amendment applies in the digital age. What are our privacy rights in the digital age? Do Supreme Court precedents from the 1960s and ‘70s and ‘80s decide the question of state power to surveil in the 2000s?” he says. “The Supreme Court said emphatically, no technology has changed. The government’s ability to surveil has changed. People’s expectations of privacy have changed. And we have to answer these questions.”
In a best-case scenario, Abdo believes that could happen here. “I think we may be witnessing something similar in the First Amendment context — that courts will have to analyze anew how the First Amendment ought to apply to new technologies,” he says. “And what I hope they will keep as their guiding point is whether their interpretation of the First Amendment ultimately serves the values that free speech is meant to serve.”