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The Court Got It Right on Free Speech and Social Media
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The Court Got It Right on Free Speech and Social Media

Despite some conservative opposition, NetChoice was in keeping with the First Amendment.

(Photo by Artur Widak/NurPhoto/Getty Images)

The Supreme Court on Monday ordered additional trial court proceedings in a pair of cases challenging the constitutionality of laws that force social media companies to carry messages they disagree with, or let people to use their services even if the companies’ owners would prefer not to. 

Known collectively as the NetChoice cases, these rulings mark an important moment in how the court handles technologies such as Twitter and Facebook, which have so profoundly changed how we debate political issues. But the cases are also a crucial reminder of the need to abide by long-standing principles of free speech despite the temptations and frustrations of day-to-day politics.

In 2021, lawmakers in Florida and Texas passed laws that prohibit “social media platforms” from deleting, editing, “de-boosting” or “inhibiting the publication” (whatever these things mean) of users’ messages, without first providing a “precise and thorough explanation” for doing so. Moreover, the laws entirely forbid social media companies from deleting or editing any post by a “journalistic enterprise”—defined to include blogs. Lawmakers adopted these laws after some conservatives complained that social media companies were “censoring” or “shadow-banning” their messages, terms which are effectively synonyms for “not publicizing someone’s messages as much as conservatives would like.”

There’s certainly merit to some of these complaints. Social media companies have indeed sometimes refused to carry conservative messages, and have blocked users for even rational disagreement with “woke” ideology. In 2017, for example, YouTube removed some of PragerU’s videos, labeling them “hate speech”—which, whatever one thinks of Prager, is plainly silly. Twitter shut down The Babylon Bee’s account (temporarily) based on an even sillier “hate speech” accusation triggered by its satirical reference to a woman as “man of the year.” In perhaps the most absurd case, Montana Sen. Steve Daines had his Twitter account suspended for having a profile picture showing him hunting. 

These incidents may be irritating, or even unjust, but as private businesses, social media companies have the right to make these decisions. Just as a radio station or podcaster can decline to carry advertisements for products they disapprove of or ideas they find offensive—so social media companies have the right to decide what messages to publicize. That’s just how private property and free speech work. If someone doesn’t like the way Twitter, Facebook, or YouTube do business, they can go start their own social media company.

That option suggests a crucial point: The difference between government and private action is that government has the power to coerce—to jail, fine, and even kill people—which private companies can’t do. That’s why the rules for the two realms are different. Government can censor people by employing its coercive powers, as the federal government did under the infamous Sedition Act in the 1790s, or during World War I, when it sent people to jail for speaking out against the military draft. Government itself has no free speech rights; its job is to protect the free speech rights of citizens, not to pursue its own interests. And you can’t compete against the government—it rules over everybody, and is funded by tax dollars that we have to pay whether we like it or not.

These things aren’t true of the private realm. Businesses pursue their own interests, in a competitive realm, and they’re funded by people who choose to pay them in exchange for goods and services. Unlike government, they do have free speech rights, precisely because they’re run by people who are free to decide for themselves whether to invest time and money publishing articles or broadcasting commercials. If NBC or YouTube refuse to carry my advertisement, that’s not censorship. It doesn’t involve coercion. I remain as free as I was before to run my ad on ABC or CNN or Fox (or Twitch or Vevo or PeerTube) instead. If people are outraged by a company’s refusal to run my ad, they can boycott it (try boycotting the government!)—and because companies are private property, owned by investors who have their own free speech rights, forcing them to carry my ad against their will would violate their rights to free speech and property.

But advocates of the Texas and Florida laws argued that this distinction between public and private didn’t apply to social media companies, because they’ve become so powerful that it isn’t really possible to compete with them. Since these companies are “monopolies,” the government can intervene and force them to do what the government wants. 

But that’s the same argument that’s been leveled against practically every successful company for more than a century, only to be proven wrong time and time again. Recall the infamous 2007 Forbes cover story that said Nokia had become a monopoly, “the Cell Phone King” that nobody could compete against? Or the 1998 Fortune article titled “How Yahoo! Won The Search Wars”? Or the Guardian article that asked “Will MySpace Ever Lose Its Monopoly?” 

In fact, competition is alive and well in social media. When President Donald Trump was ejected from Twitter, he started his own alternative, Truth Social. There are plenty of others, including GETTR, Gab, MeWe, Substack (and Rumble and CloutHub and Frank Social…)—not to mention YouTube, podcasting outlets (Apple, Spotify, iHeart), and old-fashioned television, radio, newspapers, and direct mail. True, some attempts at competition have failed—but that’s just because the marketplace has spoken. It cannot be the case that a company is a monopoly subject to government takeover just because it outcompetes its rivals.

In any event, as Justice Elena Kagan observed in Monday’s decision—a ruling joined by both her liberal colleagues and Justices John Roberts, Brett Kavanaugh, and Amy Coney Barrett—a concern with monopoly was not what actually motivated Texas and Florida lawmakers. Instead, they were seeking to magnify the impact of speech they agree with, and that they think social media companies aren’t publicizing enough. “The large social-media platforms throw out (or encumber) certain messages,” Kagan wrote. “Texas wants them kept in (and free from encumbrances), because it thinks that would create a better speech balance….  [But] it is no job for government to decide what counts as the right balance of private expression—to ‘un-bias’ what it thinks biased.”

More simply, the First Amendment protects the freedom of speech, not some “balance” of speech that politicians consider worthwhile. In fact, for all of American legal history, courts have made clear that the Constitution doesn’t call for any (so to speak) ideological affirmative action, in which government boosts “underrepresented” viewpoints and muffles others  that are heard “too much.” The protection of free speech is achieved, not by giving bureaucrats power to “balance” who hears what, but, in Kagan’s words, “by preventing the government from ‘tilt[ing] public debate in a preferred direction.’”

That’s both the just and pragmatic line to draw. As a practical matter, it’s inevitable that if government tries to decide which speech should get what kind of amplification, politicians will exploit that power to promote speech they consider worthy—and downplay speech they think unnecessary, dangerous, or “misleading.” In fact, just days ago, in Murthy v. Missouri and NRA v. Vullo, the justices confronted cases in which government officials did just that. Murthy concerned efforts by the Biden administration to intimidate Facebook into deleting posts about the alleged dangers of COVID vaccines. In Vullo, New York officials tried to silence the NRA by threatening the banks with which it did business. Cases like these prove that bureaucrats cannot escape their own prejudices and assumptions about what kind of speech should be “balanced”—and that they cannot be trusted even to try. 

But not only is government speech-balancing impracticable, it’s also unjust. It requires curtailing the freedoms of people who disagree with the messages in question. Twitter and other companies have the right to express their views and not those of others. Forcing them to convey messages they disagree with won’t just introduce distorted notions of “balance”—it would also deprive them of their own expressive rights. It would be wrong and dangerous to force a Catholic church to accord “equal time” on Sundays to Protestant ministers, or to compel The Dispatch to publish articles by Jacobin writers, or to command Bears fans to cheer for the Packers. Yet the Texas and Florida laws do something akin to that. 

Although lawmakers claimed they were just “preventing ‘viewpoint discrimination,’” they were actually, as Kagan observed, using that “innocent-sounding phrase” to conceal the fact that they did “not like the way those platforms are selecting and moderating content, and want[ed] them to create a different expressive product, communicating different values and priorities. But under the First Amendment, that is a preference [states] may not impose.”

The most disappointing aspect of Monday’s ruling is the dissents, which are written by justices who in almost every other context champion precisely the arguments made in Monday’s ruling. In last week’s Loper Bright and Jarkesy decisions, for example—both of which concerned the powers of regulatory agencies—Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch were rightly skeptical of bureaucratic authority, precisely because bureaucracies are prone to favor the party in power. Two years ago, the same justices recognized that people (and businesses) have a right not to be forced to speak against their will in the Colorado wedding-website case. Yet when it came to Texas and Florida controlling the editorial decisions of actual media companies, they took the opposite view.

Perhaps the most shocking betrayal of principle came in the oral argument in the NetChoice cases, when Justice Alito likened Twitter’s choice to block certain messages to the federal government’s imprisonment of World War I dissenters, an analogy that ignores the fundamental distinction between public and private action—and the monumental difference between the right of a speaker or property owner not to convey others’ messages, and the power of the government to fine, jail, and execute people.

To be fair to Alito, he viewed social media companies as “the new public square,” likening the NetChoice case to a famous 1980 decision called PruneYard, in which the owners of a shopping mall were forced to let petition-circulators onto their land, on the theory that freedom of speech overrode their property rights. If it seems strange for a conservative justice to endorse such an anti-property rights viewpoint, that’s because it is: PruneYard was wrongly decided, and courts in many states have refused to follow it. Even the Supreme Court has backed away from it, recognizing that freedom of speech doesn’t entitle one to ignore the property rights of another.      

But even if PruneYard were correct, applying it would make sense only if the competition in social media were as limited as the competition among shopping malls was in the 1980s. Forty-five years ago, a community might have had only one mall, making it a kind of monopoly when it came to communicating to the public. That, at least, was the rationale the court adopted in PruneYard. But the same just isn’t true of 21st-century social media, where competition is lively and alternatives are just a click away.

The only reasonable explanation for the three conservatives’ inconsistency over government control over social media is that it’s hard sometimes to stick to principles in the heat of political controversy. It’s true that major social media companies have spent the last few years in ideological lockstep, one that has often resulted in misleading the public in crucially important ways. And it can be frustrating to be “censored” by social media—I know; my own employer, the Goldwater Institute, has experienced such “censorship.” 

Nevertheless, violating the rights of others for personal or political advantage is not only wrong, but enormously foolish. Allowing the government to take over social media companies to aid the MAGA party today means it can do the same tomorrow to aid progressives. It’s only too easy to imagine California or Massachusetts legislators forcing media companies to elevate the prominence of speakers based on race or gender identity, for example, or because their views on climate change or the war in Gaza are just that important. Such efforts might easily be rationalized on the theory that (in Alito’s words) “the enormous power exercised by platforms like Facebook and YouTube” is such that the government has an interest in “preventing common carriers from engaging in ‘invidious discrimination.’” 

That would, of course, do enormous damage to our already distorted public discourse, and would entrust politicians with something they should never have: the power to decide which messages the public “should” hear. There’s no perfect solution for bias in social media, any more than in traditional media. The First Amendment protects freedom of speech, not fairness in speech—and the best solution is for government to keep its hands off.

Disclosure: Timothy Sandefur is vice president for legal affairs at the Goldwater Institute, which filed a brief in the NetChoice cases.

Timothy Sandefur is vice president for legal affairs at the Goldwater Institute.