Column: Catching Air
The U.S. Supreme Court ruled on May 31, in the case of NetChoice v. Paxton, that Twitter, Facebook and Google can censor conservative political views, at least for now, while challenges against a Texas anti-censorship law make their way through the Court system.
The Court’s decision would seem to condone blatant viewpoint discrimination, including the exclusion of information about Hunter Biden’s laptop, banishing President Trump from the internet sites, and denying access to well-respected doctors seeking to explain their disagreement with the government’s Covid narrative.
The Court’s decision stops Texas from enforcing a law that would have required the social media platforms to give users fair access to their sites as a “modern public square.” The Texas law would have kept the internet platforms from discriminating against conservative viewpoints, although they could still exclude things like pornography, foreign government propaganda and content that incites criminal activity. The internet platforms would have been required to publicly disclose their standards.
Procedurally, this case is still in the early stages, but the Supreme Court’s decision may indicate the Justices’ leaning if and when the case comes back to the Court in the future. It may be noteworthy that Justices Brett Kavanaugh and Amy Coney Barrett sided with the more liberal members of the Court.
The core arguments
While the Court did not explain its reasoning, representatives from the social media industry had argued that the large social media companies should be treated as publishers, much like newspapers, entitled to First Amendment editorial freedom to choose what they publish. They claimed, rather dramatically, that the Texas law would end the internet as we know it, requiring those companies to disseminate content that they consider harmful, offensive, extremist, and disturbing. Of course, one person’s “misinformation” is another person’s difference of opinion.
The state of Texas, by contrast, argued that the large social media platforms are “modern public squares,” host forums open to the public, required to allow a fair and robust exchange of ideas. The big tech platforms should be treated as “common carriers,” a legal status traditionally applied to transportation and shipping companies but extended more broadly to carriers of communication like telephone companies that are not permitted to refuse service just because they disagree with what a customer wishes to say.
Texas argued that the social media platforms should not be allowed to suppress free speech when those companies have held themselves out to the public for many years as an open public forum. They should be held to a standard of neutrality, like public utilities that are required to serve all comers, especially when the law expressly favors them with legal immunity as mere “platforms” for third-party speech under section 230 of the 1996 Communications Decency Act.
Justice Alito’s dissenting opinion
Justice Alito, in his dissenting opinion, noted a landmark 1980 Supreme Court case, PruneYard Shopping Center v. Robins, that allowed students to solicit signatures for a political petition at a private shopping center, despite the property owner’s objections, since the property was open generally to the public.
The Court in PruneYard rejected the property owner’s argument that he was being forced to support the student’s position in violation of his First Amendment rights, since he could post signs explaining that he did not endorse their views. So too, the owners of Twitter, Facebook and Google can make it clear to the public that they do not endorse any of the views posted on their sites.
What about Section 230?
The social media companies’ insistence on “editorial discretion” seems rather disingenuous in light of their long-time insistence that they are mere “platforms” hosting third-party speech, not “publishers” who would be legally responsible for the content on their sites.
These companies have been able to generate massive profits over the years thanks to the legal protection they get from Section 230 treating them as host platforms not responsible for any of the content on their sites or for any content restrictions they decide to impose.
Ironically, the purpose of section 230 was to promote an open internet, but it has become just the opposite, allowing these companies to close their sites to opposing viewpoints.
Huge Free Speech implications
The NetChoice case has huge free speech implications as our country faces monumental crossroads affecting everything from major public health policies to the political process itself.
Most of us would agree generally that companies acting as private news outlets should not be forced to publish viewpoints with which they disagree.
But on the other hand, the big social media companies should not be allowed to censor opposing viewpoints on major public issues after they have already positioned themselves as a public forum effectively subsidized by the legal protection they receive under Section 230.
While it could take years for the courts to resolve the legality of the Texas law, another possible solution in the meantime might be to change Section 230 to require the big social media companies to act more responsibly. If they really want editorial discretion, there is no reason for Section 230 to absolve them of the responsibilities that go along with that.
On the other hand, maybe it is not the best solution in the long run to put state government officials or judges in charge of enforcing internet fairness.
Maybe we need antitrust legislation or the enforcement of existing antitrust laws to break these companies into smaller pieces with less of a monopoly.
Or perhaps the answer is to encourage competition from companies like the Parler free speech platform or Elon Musk as the possible new owner of Twitter.
We will never get everyone to agree on controversial subjects, but it is critical to preserve free speech in order to foster communication and sharing of information so that the American people can make rational decisions in an open society.
David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »
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