While this is generally good news for conservatives, further appeals are all but guaranteed, and the issue will probably end up in the Supreme Court, especially since a similar law in Florida was rejected by the 11th Circuit Court of Appeal. The Texas case focused on the free speech rights of those who are censored while the Florida case focused more on the right of private internet companies to choose what to allow on their sites.
The Problem of Big Tech censorship
Internet censorship has become a big problem with the dominant social media companies increasingly censoring conservative viewpoints and news, distorting the political process and public opinion in general. Examples include the unprecedented banning of President Trump from social media sites around the time of the 2020 election and the exclusion of well-respected doctors who disagree with some of the government’s Covid narrative.
Even more worrisome is the government’s involvement in this censorship. While the First Amendment does not generally apply to private companies like Facebook, Twitter, YouTube and Google, private-company censorship violates the First Amendment when it is done in collaboration with government officials.
Facebook CEO Mark Zuckerberg recently admitted that Facebook followed directions from the FBI in late 2020 to suppress information about Hunter Biden’s laptop that could have changed the outcome of the election. Just last summer, two U.S. senators revealed emails between the Department of Homeland Security and Twitter executives contemplating how Twitter can suppress speech that the DHS believes to be mis-information.
The Centers for Disease Control (CDC) has publicly admitted that it works with social media “partners,” including YouTube, to curb the spread of what it calls “vaccine misinformation,” including views that question official government positions on the Covid vaccines and potentially dangerous vaccine side effects. Mark Zuckerberg has acknowledged that Facebook worked with the CDC to block some Covid-related content, including discussion about the Wuhan China lab leak theory, calling it a “conspiracy theory” and “misinformation.”
Will the Supreme Court allow anti-censorship laws?
We can only guess at how the Supreme Court will rule on the Texas anti-censorship law. The Court voted 5-4 last summer to put a temporary hold on the Texas law while the lower Court was considering the case, but that ended when the 5th Circuit Court affirmed the Texas law. Justices Alito, Thomas and Gorsuch sided with Texas at the time. The other two conservatives on the Court, Justices Barrett and Kavanaugh, voted in favor of the temporary hold, indicating a possible leaning against the Texas law, but that may have been based more on procedural considerations so we cannot conclude from that how they will rule on the merits of the Texas law.
The basic issue is whether the internet platforms are like newspapers that have a broad First Amendment right to exercise “editorial judgment” in deciding what to publish. Or are they meant to operate as “platforms,” a modern digital “public square” that screens out some spam and obscenity but then posts the rest without any editorial responsibility? The big internet companies have traditionally presented themselves to Congress and to the public as mere “platforms” and Section 230 of the Communications Decency Act law generally treats them as such by giving them legal immunity from any lawsuits relating to content on their sites.
Big Tech argues rather dramatically that the Texas law threatens the internet as we know it, requiring them to disseminate content they consider harmful, offensive, extremist, and disturbing. However, the law still allows them to exclude pornography, specific threats of violence and any incitements to criminal activity. They can still express their own viewpoints and they can always make it clear to the public that they do not endorse any of the views posted on their sites.
Supreme Court Justice Louis Brandeis may have put it best in 1931 when he said that the remedy to combat harmful speech is “more speech, not enforced silence.” Open debate not censorship.
Advocates for the Texas law argue that social media should be treated like a public utility that is required to provide its services without discrimination to all comers. Justice Clarence Thomas suggested just last year that the large digital platforms should be treated as “common carriers” like telecommunications and public utilities, or as “public accommodations” like hotels and restaurants which are required to serve all members of the public fairly.
The 5th Circuit Court of Appeals characterized the Big Tech position as “staggering” inasmuch as it would mean that email providers, mobile-phone carriers and banks can cancel the accounts of anyone who sends a message, makes a phone call or donates money in support of a “disfavored” political party, candidate or business. Internet censorship is like the phone company cutting someone off from a conference call just because they do not like what the person is talking about, under the pretext that it is their phone system and the person can always switch carriers.
What happens next?
Unless Big Tech can get a temporary reprieve or permanent reversal of the law, it will be very interesting to see how the internet platforms deal with the Texas law. Will their technology allow them to screen content in every place but Texas, leaving their customers in other states uninformed? Other states will surely follow Texas’ lead. A July 2022 article in Politico indicated that lawmakers in more than two dozen states have already introduced laws to prevent companies from censoring user viewpoints or blocking political candidates.
While we wait for more legal clarity from the Court, our country would do well to think about other, possibly better, solutions to the problem of internet censorship. The Texas law is a good start but there are also some real dangers in trusting the government to oversee free speech, forcing private companies to publish unwanted content.
One alternate solution would be to promote competition in the industry, including new social media platforms, using anti-trust laws if necessary to break up the dominant social media companies into smaller parts. Some of us remember the unregulated early days of the internet when there were numerous small chat rooms, web forums and bulletin boards providing a true marketplace of ideas.
Another possible answer to internet censorship would be to revoke section 230 or limit Big Tech’s liability protection so they can be sued in Court when they violate their terms of service or content moderation standards. Clarence Thomas has suggested that a proper interpretation of section 230 would not insulate these companies from liability for bad-faith removal of third-party content.
Finally, our Courts should be open to appropriate legal action against the big internet platforms and government officials when they conspire to violate our First Amendment rights.
Free speech needs to be preserved. It our first freedom as Americans, essential to protect all of our other freedoms.