April 20, 2024

Big Tech is battling Texas and Florida in SCOTUS, and Brett Kavanaugh could be the one to save the Internet as we know it.

Can Florida and Texas weaponize conservative paranoia about Big Tech’s alleged liberal bias to destroy social media and free speech as we know it? After nearly four hours of arguments on this question at the Supreme Court on Monday, the answer is disconcertingly confusing. The justices divided along unusual lines as they grappled with the two laws at issue. Some seemed genuinely divided over how best to approach the whole mess before them. And while uncertainty is fine (judges are not gods), the stakes are too high for the court to screw this up.

What are those risks? Well, Florida and Texas are trying to subvert basic principles of the First Amendment to turn the world’s most popular websites into unusable quagmires of hate and extremism. If SCOTUS allows them to succeed, it would be a grave disgrace to free expression, free enterprise, and democracy itself.

The two laws in question were inspired by Republican lawmakers’ belief that social media platforms discriminate against conservative voices. (They don’t, but these legislators confuse some anecdotal cases with irrefutable proof of a trend.) In response to protests from the right, Florida Governor Ron DeSantis and Texas Governor Greg Abbott signed substantially similar legislation that limited the platforms’ capacity. moderate content posted by users. Florida law prohibits platforms from moderating any speech about political candidates, impeaching a political candidate or disfavoring any “journalistic enterprise.” It also imposes rigid “consistency” requirements for the moderation of all other content. The Texas law goes even further and prohibits platforms from making editorial decisions based on the user’s “point of view.”

Both laws require companies to notify users that they still end up “censored” and allow them to appeal. Both allow individual users to sue and collect damages, which in Florida amount to $250,000 a day. Both define “content moderation” broadly to encompass the removal, deprioritization, or “hidden ban” of posts; “move” a user; or place comments on others’ posts. Both are limited to the largest Internet companies.

These laws were designed to seem innocuous. They are the complete opposite. Its sweeping restrictions on content moderation would require platforms to host all types of hateful and repugnant speech (including electoral subversion). Let’s consider the implications of a single provision: Texas’s ban on “viewpoint discrimination.” Under this regime, Facebook could not remove a post that spread dangerous lies about election fraud. YouTube failed to remove a video celebrating white supremacist brutality. Instagram failed to remove a photo that promoted terrorist propaganda. No company could end run-of-the-mill bigotry: its racist speeches, its anti-Semitic memes, the garbage that pollutes everyone’s Internet experience. They couldn’t even deprioritize this content to protect users. Which means millions of users would almost certainly flee when their daughter’s wedding photos were suddenly replaced by KKK recruitment videos.

So in response to the new laws, the platforms sued in both states, arguing that the First Amendment protects their right to moderate content on their own websites. They defeated the Florida law, but not the Texas law, although SCOTUS stopped it while they appealed. His theory is persuasive. Each platform seeks to foster a certain type of “community” by eliminating and deprioritizing certain discourses. By exercising this “editorial discretion,” they are dedicating themselves to expressing themselves. Choosing which speech to enhance, obscure, or eliminate, the platforms say, is a fundamentally expressive activity. In that sense, modern content moderation is indistinguishable from a newspaper’s right to publish or not publish a specific column. The Supreme Court has long held that publications (from newspapers to corporate newsletters) are entitled to “editorial control and judgment.” United CitizensMeanwhile, he clarified that the First Amendment grants corporations exactly the same rights as it does to individuals and the media. These established principles of free speech, social media companies claim, protect their own right to moderate the speech of others as they see fit.

Paul Clement, a conservative lawyer who works for big tech companies, made these points eloquently on Monday. Attorney General Elizabeth Prelogar did the same, intervening from the platforms’ side. On the other hand, Florida Attorney General Henry C. Whitaker (clumsy) and Texas Attorney General Aaron Nielson (obtuse) did a miserable job upholding their states’ laws. This disparity left the judges largely in conversation with themselves, a dialogue that revealed two poles and a soft middle among the nine.

At one pole, Justices Clarence Thomas and Samuel Alito upheld the laws and disparaged the platforms as totalitarian bullies. Alito suggested that the phrase “content moderation” succumbed to an “Orwellian temptation to recategorize offensive conduct in seemingly bland terms,” dismissing it as a “euphemism for censors.” Thomas mocked the platforms for “censoring, as far as I know,” adding, “I don’t know of any speech interest protected by censoring other speech.” (The court has always held that excluding a message is itself protected speech.) Thomas also implied that because they are so large, the companies in question have somehow lost their First Amendment rights, a strange argument from the court’s proudest defender of corporations. ‘Right to buy elections. Justice Neil Gorsuch also leaned in this direction.

At the other pole, Chief Justice John Roberts and Justice Brett Kavanaugh summarized the case as follows: The First Amendment prevents the government from censoring private companies; It does not prevent these companies from censoring their own users. Kavanaugh, despite his recent turn to the far right, has been a consistent defender of the right of corporations to organize any speech they want, which of course also means excluding any speech they want. While serving on the D.C. Circuit, he wrote an opinion opposing net neutrality with broad language that foreshadowed these cases: The government, he asserted, cannot “tell Twitter or YouTube what videos to post; or tell Facebook or Google what content to favor.” At SCOTUS, he has carefully maintained the distinction between state censorship and moderation of private platforms. And on Monday, he responded directly to Alito’s ridiculous reference to Orwell, reminding his colleague: “When I think ‘Orwellian,’ I think of the state, not the private sector, not private individuals.”

Kavanaugh addressed this issue as strongly as he could. “When the government excludes expression from public space, that is obviously a violation of the First Amendment,” the judge said. “When an individual or private entity makes decisions about what to include and what to exclude, that is generally protected.” [as] editorial discretion.” He also refuted Thomas’s suggestion that a company loses its free speech privileges when it reaches a certain size or popularity. Reading from a key precedent, Kavanaugh explained that “the concept that the government can restrict the speech of some elements of our society to enhance the relative voice of others is wholly foreign to the First Amendment.” To make the point, he noted that previous generations complained that newspapers had unlimited power “to shape public opinion, and that this had led to abuses of bias and manipulation.” However, SCOTUS “said that was not good enough” to allow the government to force newspapers to publish the speech of others. His implicit question: Why is the Internet different?

Everyone else sat in the middle. In particular, these ambivalent justices seemed fairly certain that these laws violate the First Amendment when applied to platforms consisting of pure expression, such as Facebook and YouTube. However, they wondered if they also applied to speech in the service of commerce (think Etsy or Uber), as well as interpersonal communications like Gmail. Justice Elena Kagan asked whether the court could hold that the First Amendment protects “select news sources,” but not actual services like “Venmo, Dropbox, and Uber.” Those companies are already prohibited from discriminating on the basis of race or sex, she Kagan noted. Could a State add a point of view to the list? (Big Tech lawyer Clement said no, much to the judge’s dismay.)

Judge Amy Coney Barrett candidly admitted that “this is a long statute and it makes me a little nervous.” She told Prelogar that the case contained “a lot of dirt” and she was concerned about the “implications” of it for future cases. Judge Ketanji Brown Jackson also complained of “a lot of indeterminacy in this set of facts” and noted that “we’re not quite sure who it covers.” Jackson was deeply skeptical that the Florida law, at least, was unconstitutional in “all its applications,” raising the possibility of sending the case back to the trial court for further fact-finding and a more recent ruling. limited. Jackson and Barrett were more receptive to the possibility that the Texas law is more blatantly unconstitutional because it applies only to large speech-oriented platforms.

These concerns about a decision that is too broad or premature are understandable. But at the end of the day, Kavanaugh’s direct view of this dispute is clearly correct. There is a misleading appeal to the states’ argument that they are somehow vindicating free speech principles by forcing platforms to host more speech. But his argument makes no sense, because the First Amendment applies exclusively to the government. The Constitution prohibits states from censoring speech; it does not give them license to tell private companies what speeches they are required to present. Florida and Texas want to reverse that rule. The result would be bad law and terrible policy, and an Internet dominated by rotten speech that no one wants. hear.

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