Transcript - First Amendment On Trial
Today on Legalese, we are talking about two cases that put social media and the first amendment on trial, coming before the Supreme Court next week.
On Monday February 26th the Supreme Court will hear oral arguments in two cases dealing with the constitutionality of controversial laws in Texas and Florida. Moody v Netchoice and Netchoice v Paxton are two cases that would regulate how large social media companies like Facebook and Twitter control content posted on their sites.
You should already be at least slightly familiar with these cases since they were featured prominently back in October as part of my Supreme Court Roundup for the 2023-2024 term. But today I want to go over the background of these two cases. Examining both the facts of the cases and their procedural histories, so when oral arguments happen this coming Monday you guys will be ready to listen to them (or at least listen to my oral arguments recap that will come out a few days later) and know everything you need to know about these cases to follow them as they continue to develop.
Let’s start with the Texas case HB 20
Texas Case History
In August 2021, the state legislature in Texas, passed House Bill 20 (HB 20), prohibiting large social media platforms from “censoring” content on the basis of different viewpoints.
The legislature characterized social-media platforms as
“common carriers [by virtue of their market dominance], … affected with a public interest, … central public forums for public debate, and have enjoyed governmental support in the United States” [p. 3].
This social media platforms are common carriers argument is a completely bogus claim that I have taken apart in past videos on Section 230 that I will link on the show notes page for this episode and I would recommend checking out.
Section 2 requires that the social-media platforms make three categories of disclosure: they must “disclose how they moderate and promote content and publish an ‘acceptable use policy’”; they must publish a ‘biannual transparency report”; and they must maintain a “complaint-and-appeal system” for users [p. 5].
Section 7 of the Bill states: “A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on: (1) the viewpoint of the user or another person; (2) the viewpoint represented in the user’s expression or another person’s expression; or (3) a user’s geographic location in this state or any part of this state.”
It does include qualifications, permitting censorship if it is authorized by federal law, the content involves sexual exploitation and harassment, or if it incites criminal activity or violence against a person based on the “race, color, disability, religion, national origin or ancestry, age, sex or status as a peace officer or judge”.
The provision allows for defamation suits against a platform that violates section 7, but only for the recovering of costs and attorneys’ fees, not damages.
In September 2021, before the bill took effect, Netchoice, a trade association representing several internet and social media companies, argued that HB 20 was facially unconstitutional as the First Amendment includes the activity of moderating content and this law should not be applied to anyone.
On December 1, 2021, the district court issued a preliminary injunction finding that sections 2 and 7 were facially unconstitutional. It disagreed with the State that social media platforms were “common carriers”, but found that the platforms:
“[E]ngage in ‘some level of editorial discretion’ by managing and arranging content, and viewpoint-based censorship is part of that editorial discretion”, and held that the disclosure obligations were “inordinately burdensome” and would “chill the social media platforms’ speech” [p. 6].
The district court also held that HB 20 “discriminates based on content and speaker because it permits censorship of some content … and only applies to large social media platforms” [p. 6]. After finding that the bill could not withstand “any level of heightened scrutiny”, the district court issued a preliminary injunction.
This case was then appealed to the Fifth Circuit Court of Appeals in Texas, who overturned that preliminary injunction that had prevented the implementation of the bill.
So, to recap: The Texas legislature had passed a law prohibiting the large social media platforms from censoring users’ posts based on viewpoint. The district court had found that the bill violated the platforms’ editorial discretion, protected under the First Amendment. The Court of Appeals held that the content moderation did not constitute First-Amendment-protected speech and the bill was therefore constitutional.
Now let’s review Florida’s similar SB 7072.
Florida Case History
In May 2021, the State of Florida enacted a law, Senate Bill (S.B.) 7072, to combat the so-called effort of silencing conservative speech in favor of a more leftist agenda.
S.B. 7072 contained several provisions which applied to social-media platforms, broadly divided into three categories: “1) content-moderation restrictions; 2) disclosure obligations and 3) a user-data requirement”. [p. 9]
The content-moderation restrictions prevented social-media platforms from removing a candidate for public office from the platform (“deplatforming”); limiting or prioritizing posts by or about political candidates; and censoring any “journalistic enterprise”. They also required the platforms to apply “consistency” in their decisions to remove or limit posts or users; to allow users to “opt-out” of receiving a moderated feed; and to not change its conditions or standards more than once every 30 days.
The disclosure provisions required platforms to publish their standards and rule changes; and to allow access to information on “view counts” of posts or users’ content. They also regulated the free advertising platforms were allowed to provide to candidates. The provisions also required the platforms to provide detailed explanations to a user when any post or content is moderated.
The user-data requirement provision required the platforms to make available to any user on request the data from their account for at least 60 days after the account has been removed.
Netchoice, the association representing a variety of internet and social media companies, sought to enjoin the enforcement of specific provisions in S.B. 7072 on the grounds that those provisions violated social-media platforms’ right to free speech and are “pre-empted by federal law” (in that there is a federal law which provides for competing obligations and so would override S.B. 7072). [p. 14]
47 U.S.C. § 230(c)(2) states that “[n]o provider or user of an interactive computer service shall be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected”. [p. 14]
The district court granted Netchoice’s motion and preliminarily enjoined the enforcement of certain provisions of S.B. 7072 on the grounds that
47 U.S.C. §230(c)(2) limits liability of providers to restrict access to content on account of public interest. The district court also held that S.B. 7072 did implicate the platforms’ First Amendment rights as it restricted their constitutionally-protected exercise of “editorial judgement”. [p. 14]
The Court concluded that the entire bill was mainly motivated by the State’s purpose of defending conservatives’ speech from the perceived “big-tech” bias [p. 14]. Accordingly, it held that Netchoice met all the requirements for the preliminary injunction.
The State of Florida appealed to the Court of Appeal for the Eleventh Circuit.
The United States Court of Appeals for the Eleventh Circuit granted a preliminary injunction in respect of specific provisions of the Florida Senate Bill which sought to “combat the ‘biased silencing’ of ‘our freedom of speech as conservatives … by the “big tech” oligarchs in Silicon Valley’.” [p. 7]
A trade association representing the big social-media platforms approached the courts, seeking an injunction on the enactment of the Bill, arguing that the law’s restrictions on the platforms’ content moderation and disclosure activities violated their right to free speech under the Constitution’s First Amendment. The lower court granted the broad injunction.
On appeal, the Court accepted that the majority of the contentious provisions were “substantially likely” to be unconstitutional, and so would meet the standards for a preliminary injunction. Following an analysis of all the impugned provisions, the Court declared that specific provisions requiring disclosure from the platforms were likely to be constitutional and so did not grant the injunction in respect of the enactment of those provisions.
The Court stressed that social-media platforms engage in protected speech when moderating the content on their platform, and that, as private companies, are entitled to curate a specific type of content and community for their platform.
Cases Coming Before the Supreme Court
In May 2022, a divided supreme court put H.B. 20 on hold while the challenges to the law continued in the lower courts. Four justices dissented from that decision. Justice Samuel Alito, in an opinion joined by Justices Clarence Thomas and Neil Gorsuch, suggested that the court’s intervention was premature, while Justice Elena Kagan indicated only that she would have allowed the law to take effect.
In September 2022, the U.S. Court of Appeals for the 5th Circuit ruled for Texas and upheld the law. That prompted the tech companies to return to the Supreme Court, asking the justices to weigh in. Texas agreed that the court should grant review, and it urged the justices to consider both the Texas law and the Florida law at the same time.
Florida came to the Supreme Court last fall, asking the justices to weigh in after the U.S. Court of Appeals for the 11th Circuit blocked the state from enforcing most of the law. In January, the justices asked the Biden administration for its views on whether to take up the disputes.
In a brief filed in August, U.S. Solicitor General Elizabeth Prelogar recommended that the court take up two questions presented by the cases in their cert petitions:
Whether provisions in the Texas and Florida laws that regulate tech companies’ ability to remove, edit, or arrange the content that appears on their platforms violate the First Amendment,
As well as whether provisions that require tech companies to explain their decisions to remove or edit specific content violate the First Amendment.
Prelogar urged the justices to strike down both sets of requirements, but she told the justices that there is no need for them to weigh in on two other aspects of the dispute:
The tech companies’ challenge to provisions in the Texas and Florida laws imposing general disclosure requirements on social-media platforms,
And their argument that the laws were enacted to target large tech companies because of their decisions regarding conservative content on their sites.
Among other things, she explained, both of the courts of appeals rejected these arguments, so there is no division among the lower courts on this question – one of the criteria that the justices consider when deciding whether to grant review.
The justices followed Prelogar’s recommendation to take up the first two questions presented by the cases, but not the two other issues in the dispute.
This is the second set of cases dealing with major first amendment social media disputes. As you may recall, on October 31st the justices heard oral arguments in O’Connor-Ratliff v. Garnier and Lindke v. Freed, two cases to decide whether public officials are acting as government officials, and therefore can violate the First Amendment, when they block people on their personal social media accounts.
Conclusions
Hopefully we have covered everything you need to know to follow the upcoming Netchoice cases. Oral arguments are this coming Monday February 26th and I would recommend listening if you have the time. Paul Clement is the attorney of record for Netchoice, which means he will almost definitely be the one arguing these cases before the Court. For those unfamiliar with Paul Clement, he is widely recognized as the most gifted Supreme Court litigator of our time So, despite your personal feelings on the outcome of this case, hearing him argue before the court is an opportunity I always relish.
As usual, a few days after oral arguments I will have my own video summarizing those arguments, so those of you who don’t have the time or inclination to spend the full 4 hours listening to the cases as they come before the Court can still make sure you get all the key information to keep up to speed on these cases.