Supreme Court Considers Social Media

Let’s suppose that you submitted a letter to the editor.

Let’s suppose that the publication, for whatever reason, declined to run it.

Let’s suppose that you, disapproving of that decision, went to your friendly neighborhood federal-district court, filed suit, and asserted that you have a First Amendment right to engage in your speech, so the publication must run your letter.

The publication might say something such as this: Even if you have a First Amendment right to engage in your speech, you don’t have a First Amendment right to make us run it.

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Analogous points are among the contentions before the U.S. Supreme Court in two cases, one from Florida and one from Texas, involving social media.

Florida and Texas enacted laws affecting social-media companies.

The Florida and Texas laws arose from frustration on one side of the American political spectrum that social-media companies were–in various ways–siding with those on the other side of the political spectrum.

Even if you didn’t know, or weren’t sure, which side is which, it’s not hard to take a good guess at it if you know which side of the political spectrum social-media companies have in general favored.

Then again, which side is which is beyond the point, because it doesn’t affect the constitutional analysis. The First Amendment, where it applies, applies across the board.

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The Florida law worked its way up through the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit. That appellate court struck down the Florida law.

The Texas law worked its way up through the New Orleans-based U.S. Court of Appeals for the Fifth Circuit. That appellate court upheld the Texas law.

The U.S. Supreme Court’s agreeing to hear both cases allows it to resolve the circuit split.

Reading the briefs reveals the competing arguments.

≤ Florida and Texas defend their laws.

“At issue are provisions that require the platforms to apply their censorship and deplatforming standards consistently (neutrality provisions); preclude them from silencing journalistic enterprises and political candidates (hosting provisions); and require them to disclose and explain their censorship decisions to their users (individualized-disclosure requirement). Those measures are in the mold of requirements that for centuries have governed entities–like the platforms–that generally hold themselves open to all comers and content,” Florida says. “The First Amendment protects the expression of private entities, but it does not give them constitutional license to selectively silence the speech of those they may host. … Those holdings are of a piece with the history of common-carrier regulation, which has long required a company that holds itself generally open to all comers to refrain from arbitrarily discriminating against its customers’ speech.”

Recalling history, Texas takes a similar approach: “The telegraph marked the most revolutionary advancement in communication since the Gutenberg press. … This revolution, however, had a dark side. ‘(T)he private entities that controlled this amazing new technology’ could–and did–‘use that power to manipulate the flow of information to the public.’ … To safeguard the free exchange of ideas, the States and later the federal government required telegraph operators to transmit speech ‘with impartiality and good faith.'”

≤ Those challenging the laws disagree: “This Court has repeatedly rejected governmental efforts to compel private parties to disseminate speech, in cases involving everything from parade organizers to newspapers to bookstores to cable-television operators to government-franchised monopolies to websites and more. And rightly so, as there is no American tradition of forcing private parties to disseminate viewpoints against their will. Benjamin Franklin ‘did not have to operate his newspaper as “a stagecoach, with seats for everyone.”‘ The same is true of a website.”

Randy Elf joins those waiting to see whether the Supreme Court picks up on the telegraph or the publisher line of thought.



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