While my headline lacks something in concision, the topic for today is anything but simple: whether internet-based enterprises such as Amazon, Google, Tiktok, and X are free to do basically anything they want with the input their users provide, or whether the states of Texas and Florida can impose certain restrictions on content moderation. Last week the U. S. Supreme Court heard opening oral arguments in two related cases on this topic that the Court has decided to hear together.
NetChoice v. Paxton pits the trade association NetChoice, which includes such heavy hitters as Amazon, Google, and X, against the Texas state gadfly and attorney general Ken Paxton, who attempted to enforce a bill that would prohibit social media companies from censoring posts except in extreme cases such as obscenity and libel. Moody v. NetChoice concerns a law that was passed in Florida at the urging of Gov. Ron DeSantis to prevent social media firms from "de-platforming" a political candidate actively running for office. The lawsuits arising from NetChoice's objections to what it sees as restrictions on its members' First Amendments freedom of speech have percolated through the federal courts and ended up at the Supreme Court last Monday.
There are two extreme positions that mark the boundaries of this debate. One extreme is taken by the state legislatures, which is that large internet-based firms, including but not limited to social-media outfits such as X and TikTok, are used so universally that they should be considered as "common carriers." A common carrier, in legal parlance, is a service that is so essential to modern life that it must accept customers and their activities on a basis limited only by common-sense rules. The classic common carrier was the old Ma Bell system back when all you could do with a phone was call Aunt Maude. As long as you paid your monthly bill, you could say absolutely anything you wanted to say, and Ma Bell wouldn't stop you. And anybody who can muster up the cash for a bus ticket can ride the bus. Similarly, the state bills object to censorship, de-platforming, and other ways that social media companies either emphasize or obscure certain users depending on what they are saying, because the state laws tend to view them as common carriers.
The other extreme is taken by NetChoice, which views its members as valiant warriors protecting their own freedom of speech as well as that of their users. Their classic analogy is the old-fashioned hot-type newspaper, back when all you could do with the paper was line the bottom of the birdcage—after reading it, of course. Nobody presumed to tell the editorial-page editor what letters he could or could not include in the paper, and so no state law should tell X which tweets to suppress or encourage, or leave alone. They are private firms and it's their business what they do with their content, not the states' business.
A report on the first day's arguments by the Electronic Privacy Informatiion Center (EPIC) indicates that the Supreme Court justices are not enthusiastic about either end of this spectrum. In particular, they seem to think that NetChoice is being more than a little hypocritical because of how it has used a law called Section 230.
Section 230 of the federal Communications Decency Act gives NetChoice members immunity from prosecution for libel for what any of their users say, in this sentence: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The word "publisher" echoes our exemplary newspaper editor, and Section 230 lets X say, in effect, "Man, we didn't write or publish or say that. Our crazy user said that, and you can't blame us for what he said." Section 230 protection is one of the carefully guarded legal jewels of the NetChoice empire, and flocks of lawyers appear whenever anyone threatens it.
At least two Supreme Court justices perceived that NetChoice is trying to have its free-speech cake by defeating the state laws limiting their content-moderation actions, and eat it too by claiming innocence when someone posts something objectionable and a NetChoice member claims immunity under Section 230. At one point, Justice Gorsuch asked, "So it's speech for the purposes of the First Amendment, your speech, your editorial control, but when we get to Section 230, your submission is that that isn't your speech?" And at another point, Justice Alito said, "It's your message when you want to escape state regulation, but it's not your message when you want to escape liability under state tort law."
It's anybody's guess what the Court will decide in these cases, but indications are that neither NetChoice nor the states will get everything they want. My own view is that social-media firms, by catering to the lower instincts of the human mind and heart, have wrought incalculable damage to the political and social structures of not only the U. S. but many other countries as well. And especially when the government begins to "assist" social-media firms in deciding what is free speech and should be left alone or promoted, and what is "disinformation" and should be de-emphasized or suppressed, we have traveled a good part of the way down a slippery slope to something akin to the old Soviet Union, or the present Peoples' Republic of China, where everything you say and do is monitored and assessed and has consequences that can be quite dire if you go against what the government wants you to do.
The Texas and Florida laws are a first step toward opposing this trend, and NetChoice's actions opposing them is exactly what you would expect a bully to do if someone challenges his dominance. Fortunately, the federal structure of our government is still functioning, although seriously damaged, and I hope that the justices' decisions in these cases will clip the wings of an industry which, Icarus-like, is flying way too close to the sun.
Sources: I referred to an editorial by Jennifer Huddleston in the Mar. 1, 2024 edition of the Austin American-Statesman, a blog post on the EPIC website at https://epic.org/four-key-takeaways-from-the-netchoice-v-moody-and-paxton-oral-arguments/, and the Wikipedia articles on NetChoice and Section 230.
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