The Supreme Court on Monday heard hours of argument in two free-speech cases, Moody v. NetChoice and NetChoice v. Paxton.
NetChoice, an industry group representing large tech companies, argued that laws enacted by Texas and Florida restricting the companies’ ability to demote or remove user content violated the First Amendment rights of social media platforms.
Listening to NetChoice’s arguments, one gets the impression that the states are forcing social media to broadcast pro-terrorist, pro-suicide messages.
They are not. And the hysterics of NetChoice’s hypotheticals should make a fair-minded person skeptical.
Rather, the cases are, to paraphrase the late historian and scholar Christopher Dawson an effort by the nation’s de facto social powers to exempt themselves from all interference by lawful political authority.
The dominant social media platforms—Facebook, X (formerly Twitter), et al.—attained their dominance by marketing themselves as an open digital marketplace for ideas. The question now is whether states have any authority to regulate these private businesses to keep the digital “public square” available to speech and speakers that the platforms disfavor.
Whether states have such authority depends on how much of social media platforms’ operations are protected by the First Amendment: All? Some? None?
Do platforms such as Facebook merely host the speech of others, like providers of cellphone service? Is algorithmic content curation inherently expressive like the decisions of a newspaper’s editorial board? Is the decision to ban certain users censorious in the expressive sense or merely censorship?
Texas and Florida contended that little of what social media platforms do to user content qualifies as expressive. Throughout oral arguments, the solicitor generals of Florida and Texas maintained that when the platforms demoted or promoted, hosted or banned, they were engaged in conduct, unprotected by the First Amendment, not in speech.
Thus, it was perfectly constitutional for Florida to prevent social media sites from deplatforming candidates for public office or for........