This morning, as you likely heard, the Supreme Court heard oral arguments in the NetChoice/CCIA cases regarding Texas’ and Florida’s social media laws. The outcomes of these cases will have a pretty major impact on the future of online speech. While a lot of people have suggested that the states’ arguments are supported by conservatives, and the platforms’ arguments are supported by liberals, that’s not really how the support has lined up at all.
Many traditionally conservative groups and individuals filed amicus briefs in support of the platforms, and a few liberal groups filed briefs in support of the states (though they seem very confused).
Still, it’s a bit surprising to see the WSJ editorial board come out in favor of the platforms and against the states. Yet, that’s exactly what it’s done. Over the past few years, the WSJ’s editorial board has been pretty reliably willing to support all sorts of populist Trumpist MAGA nonsense, which these laws are all about. Hilariously (but not surprisingly), Trump himself filed an amicus brief in support of the states which doesn’t (not once) mention that Trump owns Truth Social, a social media site that would violate these laws (if Truth Social ever got large enough to qualify).
But here, the WSJ editorial board gets it right: these laws are attempts by states to control speech online. And that’s never a good idea.
NetChoice, a tech industry group, is challenging Texas and Florida laws that seek to prevent social-media platforms from silencing conservatives. Republicans are rightly frustrated by censorship that often tilts against conservatives, including us. But the solution to business censorship of conservatives isn’t government censorship of business.
The editorial board also points out — as we did last year (despite people getting upset at us) — that last year’s ruling in 303 Creative shows why governments shouldn’t be involved in regulating what speech companies can and cannot assist.
NetChoice makes a strong case that the laws abridge First Amendment speech rights by restricting the editorial discretion of platforms. Only last term the Court ruled in 303 Creative LLC that Colorado couldn’t compel a website designer to create work that violates her values. The same principle, NetChoice says, should apply to the Texas and Florida laws.
While such social-media platforms as Instagram and YouTube aren’t traditional publishers like newspapers and broadcasters, they exercise editorial judgment when they decide what content to remove, suppress or amplify. They also exercise discretion when curating user feeds and making recommendations.
As for the argument that websites are common carriers, the editorial board notes that’s a silly argument:
This analogy is inapt. Businesses that are regulated as common carriers like telephone companies, taxis, railroads and electric utilities don’t engage in editorial or expressive activity. Yet the states implicitly concede that social-media platforms do engage in such expression when they accuse them of discriminating against disfavored speech. Florida and Texas can’t have it both ways.
The overriding problem is that extending common-carrier regulation to social-media platforms invites more government control of speech. Do Florida and Texas want Federal Trade Commission Chair Lina Khan dictating what can and can’t be said online? Could California pass a law requiring companies to remove posts that criticize male transgender participation in women’s sports?
There’s more, but the piece also (correctly) points out why the Supreme Court’s mostly dead Pruneyard precedent is inapt here, and that Miami Herald v. Tornillo is the much “more relevant” precedent.
Indeed, the WSJ calls out that if conservatives are upset by moderation on some platforms, they have others to choose from instead, including Elon Musk’s ExTwitter, where he seems perfectly willing to silence “the woke mind virus” but freely allows plenty of conservative grifters to grift freely.
The conclusion of the editorial is exactly correct:
But it never turns out well for conservatives, or anyone else, when the supposed remedy is giving government more power to control speech. The Supreme Court can make that clear to Texas and Florida.
It’s rare that I agree with a WSJ editorial board opinion piece, but this one is correct.
