Could Texas’ social media censorship law survive the Supreme Court? It’s not out of the question

September 20, 2022, 5:38 PM UTC
Al Drago/Bloomberg via Getty Images

Tech companies have made a strong argument about the many problems with a Texas law that prevents platforms from censoring content based on “viewpoints.”

The statute, they said, would force private enterprises like Facebook, Twitter, and TikTok to host speech from racists, bigots, and an array of other hatemongers. In turn, companies would refuse to advertise on platforms hosting vile content, while already-vulnerable communities would be subject to even more online attacks. These negative consequences and the troubling precedent would easily outweigh the potential benefits of the law, which aims to curb censorship of a small share of conservative-minded users. 

The world of jurisprudence, however, doesn’t deal only in pragmatism. And with regard to Texas’ censorship law, the legal case for striking it down isn’t nearly as clear-cut as it might seem.

A federal appellate court ruling late last week, one that upheld Texas’ censorship statute as constitutional, sets the stage for a potential Supreme Court showdown over the nexus of social media, speech, and the First Amendment. The case, should the Supreme Court accept it, will hinge on novel, complex questions—with the justices’ answers potentially rippling through the ad tech industry.

To date, it’s been easy to treat the Texas law and a similar Florida statute (it bans censorship of speech by politicians) as mere partisan hackery. Just last week, I was guilty of such casual dismissiveness, calling the Florida law blatantly unconstitutional after a separate appellate ruling—by three Trump-appointed judges—deemed it a violation of social media companies’ free-speech rights.

But Friday’s majority opinion from Fifth Circuit Court Judge Andrew Oldham lays out a reasonable legal argument for upholding the Texas law, one that could find a friendly welcome in the conservative-leaning Supreme Court.

Most interestingly, Oldham argues that Texas’ law does not violate the First Amendment (“Congress shall make no law … abridging the freedom of speech”) because social media companies are not engaging in speech when they censor content.

Precedent might seem to refute Oldham’s claim. After all, the Supreme Court determined in 1974 that a newspaper’s editorial discretion—what it chooses to publish and not publish—constitutes protected speech.

But Oldham says that social media companies “are nothing like the newspaper” because they have virtually unlimited space and make fewer judgments relative to the amount of content published.

“The platforms use algorithms to screen out certain obscene and spam-related content,” Oldham wrote. “And then virtually everything else is just posted to the platform with zero editorial control or judgment.”

Oldham builds on this point to argue that social media companies aren’t being forced by the government to engage in speech protected by the First Amendment. He argues that the sheer volume of unedited content posted on social media platforms negates the claim that users’ speech is tantamount to an unwanted endorsement of the speech by companies.  

The federal judge also cleverly wields a key clause of Section 230—the hotly debated federal statute that shields digital platforms from legal liability over content posted by users—against social media companies. Section 230, in part, states that computer service providers shall not be “treated as the publisher or speaker” of content posted by users. Therefore, social media companies claiming liability protection under Section 230 (which all of them do) are not publishers akin to a newspaper, giving them no free speech rights under the editorial discretion precedent.

(Oldham separately determines that social media companies are “common carriers,” a designation given to utility-like services, and thus subject to strict antidiscrimination laws. Legal pundits have generally rejected such a claim, though it’s found some home in conservative circles.)

It’s not yet clear whether the Supreme Court will accept Oldham’s opinion, parts of which rest on some pretty tenuous logic (example: the emphasis on quantity over quality of censored content). The justices acknowledged the novelty of the matters at hand in a May procedural ruling related to the case, with Justice Samuel Alito writing that the issues “will plainly merit this court’s review.” 

“It is not at all obvious,” Alito wrote, “how our existing precedents, which predate the age of the internet, should apply to large social media companies.”

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Jacob Carpenter


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From the article:

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