God Help Us, but Brett Kavanaugh Could Save the First Amendment
Look, you don’t have to like Brett Kavanaugh. You can hate him now, and you can go on hating him after you read this. But the fact is he was the hero, yesterday, at the oral argument in the most important internet speech case for decades.
In 2021, Republican politicians in Texas and Florida convinced themselves that Big Tech “silences conservative views,” and they got big mad about it. So they enacted a pair of laws, HB 20 (Texas) and SB 7072 (Florida), that co-opt large social media platforms’ right to control what speech appears on their services. HB 20 requires, for instance, that platforms treat all viewpoints the same. If a platform allows a government agency to post about a vaccination campaign, it must allow Roger Stone to post about how the vaccines have microchips in them.
We care about what speech a platform chooses to host or to block precisely because these choices are themselves expressive. Even the red-state legislators who enacted HB 20 and SB 7072 get this. It’s why they enacted those laws—they want to force the platforms to adopt an editorial bent more favorable to conservatives. (The laws would do more than intended, opening the floodgates for hate speech, harassment, and more.)