Big Tech Censorship Goes to the Supreme Court

NetChoice, a tech industry group, is challenging Texas and Florida laws that seek to prevent social-media platforms from silencing conservatives. Republicans are rightly frustrated by censorship that often tilts against conservatives, including us. But the solution to business censorship of conservatives isn’t government censorship of business.

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The Florida law bans large social-media platforms from removing the accounts of political candidates, or suppressing posts by or about them. Platforms also can’t take “any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast," and they must apply their standards “in a consistent manner" among their users.

The Texas law bars platforms from making editorial decisions based on the viewpoint of a user’s expression, which isn’t clearly defined. The law is so broad it could be read to bar platforms from suppressing pro-Nazi speech or content that glorifies eating disorders. Both laws require platforms to explain in detail why posts are removed. Companies could face stiff government penalties and lawsuits.

NetChoice makes a strong case that the laws abridge First Amendment speech rights by restricting the editorial discretion of platforms. Only last term the Court ruled in 303 Creative LLC that Colorado couldn’t compel a website designer to create work that violates her values. The same principle, NetChoice says, should apply to the Texas and Florida laws.

While such social-media platforms as Instagram and YouTube aren’t traditional publishers like newspapers and broadcasters, they exercise editorial judgment when they decide what content to remove, suppress or amplify. They also exercise discretion when curating user feeds and making recommendations.

The states disagree. They claim their laws regulate business conduct, not expression. They also argue that states can prohibit businesses that open themselves to the public from discriminating against customers under the common-carrier legal doctrine that predates the U.S. Constitution.

“Common carriers have generally opened their facilities to all speakers and speech," Florida writes in its brief. “Requiring them to open that door a crack more interferes with no expression of their own. Thus, the telephone company, internet-service provider, and delivery service have license neither to snuff out the speech they carry, nor to cancel disfavored subscribers."

This analogy is inapt. Businesses that are regulated as common carriers like telephone companies, taxis, railroads and electric utilities don’t engage in editorial or expressive activity. Yet the states implicitly concede that social-media platforms do engage in such expression when they accuse them of discriminating against disfavored speech. Florida and Texas can’t have it both ways.

The overriding problem is that extending common-carrier regulation to social-media platforms invites more government control of speech. Do Florida and Texas want Federal Trade Commission Chair Lina Khan dictating what can and can’t be said online? Could California pass a law requiring companies to remove posts that criticize male transgender participation in women’s sports?

Texas and Florida lean heavily on the Court’s Pruneyard precedent (1980), which held that California could extend its constitutional free speech protections to malls because they are open to the public. But malls don’t typically engage in activities protected by the First Amendment. Pruneyard also gave short shrift to the property rights of business owners.

A more relevant precedent is Miami Herald Publishing Co. v. Tornillo (1974), which overturned a Florida law requiring newspapers to offer equal space to political candidates to respond to editorials that criticize them. The Court said the law compelled and chilled speech because “editors might well conclude that the safe course is to avoid controversy."

The Florida and Texas laws do the same. If the laws stand, companies would no doubt refrain from policing their platforms to avoid being bankrupted by litigation. Some conservatives might prefer an online free-for-all, and the free market has given birth to platforms for them. Elon Musk has taken a lighter touch to content regulation since buying X, formerly Twitter. But if you’re worried about the cultural damage from social media now, imagine if sites are obliged to let anything go.

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These two cases, by the way, are separate from one the Court will hear in a few weeks concerning Biden Administration pressure on tech platforms to censor conservatives. That case, Murthy v. Missouri, implicates government censorship that strikes us as a First Amendment violation.

Conservatives are understandably concerned that left-leaning tech companies want to exclude their ideas. There is no easy solution to this problem. Exposure and condemnation of the censorship has helped. But it never turns out well for conservatives, or anyone else, when the supposed remedy is giving government more power to control speech. The Supreme Court can make that clear to Texas and Florida.