Viewpoint Discrimination May Bring 1A to Social Media

June 17, 2022

Tags: 1A, Alito, Communications Decency Act, First Amendment, HB 20, Netchoice v. Paxton, Section 230, shadow docket, texas
Posted in: Democracy

Later this year it is possible — not likely, but just possible — the Supreme Court might vote to take away social media platforms like Twitter and Facebook’s right to censor content. This would have the effect of granting some level of First Amendment protection, now unavailable, to conservative users of those platforms.

The potential for change hinges on a law struck down by lower courts, Netchoice v. Paxton, which challenges Texas law HB 20. That law addresses social media companies with more than 50 million active users in the U.S., like Twitter, YouTube, and Facebook. It prohibits these companies from engaging in content moderation by declaring that they may not censor posts on the basis of viewpoint. If a platform does remove any content, it must notify the user and let them appeal the decision. These users can sue the company for imposing “viewpoint discrimination.” HB 20 also bars platforms from placing warning labels on users’ posts to inform viewers that they contain objectionable content. It imposes disclosure requirements, including a biannual transparency report.

The law was shut down by lower courts, reinstated, then handed off to the Supreme Court as a shadow docket case (an informal term for the use of summary decisions by the Supreme Court without full oral argument) to decide. The Court refused to reinstate the law at this time, but with significant dissent. The case will likely be heard in full by the Court in the fall. The conservatives will get another try.

Twitter, et al, acting collectively through trade associations, chose an interesting defense, claiming not simply that the 1A applies only to government censors (the standard defense to prevent 1A rights from applying to social media) but claiming their content moderation constitutes First Amendment–protected speech in and of itself. In other words, censoring stuff that passes through their platforms constitutes a 1A protected act by Twitter, and thus HB 20 violates Twitter’s 1A rights. The platforms argued laws like HB 20 constitute the government blocking Twitter’s free speech right to prevent its users from exercising their free speech rights, as censorship is an act of free speech.

Twitter and its allies went on to argue to the Supreme Court “Social media platforms are internet websites that exercise editorial discretion over what content they disseminate and how such content is displayed to users.” That seems to rub right against Section 230 of the Communications Decency Act which protected social media platforms from the 1A by claiming they aren’t really “publishers” after all, just something akin to a conduit through which stuff (your tweets) flows.

As such, the Communications Decency Act argues, they are closer to common carriers, like the phone company, who could care less what you talk about in your call to Aunt Josie. But with the common carrier argument coming closer and closer to implying social media has no right to censor (in other words, they can’t have it both ways. They can’t not be responsible for defamatory material on their sites and they can’t claim immunity from the First Amendment stopping them more censoring certain viewpoints. Imagine the phone company saying they are not responsible for you calling Aunt Josie a hag but they also want to censor your conversation for using the “hate speech” term “hag.” In other other words, Twitter is either a publisher and like the New York Times and can exercise editorial discretion/censor but is responsible for what it publishes or it is not and like the phone company it cannot censor but it is not responsible for its own content.

In his dissent to the Court’s decision to stay HB 20, Justice Alito (joined by Justices Thomas and Gorsuch; Justice Kagan also dissented but did not join Alito’s opinion or write her own), notes the indecision by Twitter, et al, on whether they are publishers, but says their desire to censor (i.e., to have 1A rights of their own) means they must be publishers. But if they want to insist they are not publishers, they are common carriers and do not have a right to censor. Pick one.

Alito is well aware of the recent history of social media censorship, which has egregiously sought to block and cancel nearly-exclusively right-of-center persons. Facebook and others like it have become the censors the Founding Fathers especially feared, as one political party benefits disproportionately. Donald Trump was driven off social media as a sitting president. What should have been one of the biggest stories of the 2020 election, the Hunter Biden laptop tale, was disappeared to favor Democratic candidate Joe Biden. Social commentators like Alex Jones and Scott Horton were banned. Marjorie Taylor Greene was suspended. Of all the Members of the House banned from social media, every single one is a Republican. Size matters; banning the head of the Republican party, Donald Trump, and banning a local Democratic councilman in Iowa are not 1:1. What is being censored is not content per se (a photo, a news story) but whole points of view, in this case conservative thought itself.

Viewpoint discrimination is particularly disfavored by the courts. When a censor engages in content discrimination, he is restricting speech on a given subject matter. When he engages in viewpoint discrimination, he is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints. For example, if the government banned all speech on abortion, it would be a content-based regulation. But if the the government banned only speech that criticized abortion, it would be a viewpoint-based. Because the government is essentially taking sides in a debate when it engages in viewpoint discrimination and shutting down the marketplace of ideas which is the whole dang point of free speech, the Supreme Court has held viewpoint-based restrictions to be especially offensive to the First Amendment. Such restrictions are treated as presumptively unconstitutional.

So when HB 20 comes before the Court as a full case with oral arguments in the fall, the lines are drawn. Twitter, must et al, appear ready to admit they are “publishers” (and likely shed the protections of Section 230) to retain a publisher’s right under the First Amendment to decide what to publish (and conversely what to censor.) Alito seems to be suggesting if that is the argument, then yes, let the First Amendment apply but it must apply to Twitter, et al, in its entirety. Social media cannot claim a constitutional right to censor as a publisher and then abuse that right by engaging in viewpoint discrimination. Social media may have boxed themselves into a corner where they are constitutionally required to present both sides of an issue to preserve their right to censor one side more than the other.

So what are you, Twitter? You can no longer operate behind the illusion of democracy. Careful what you choose… are you a dumb pipe down which information flows and therefore cannot censor? Or are you a publisher with 1A rights which you use to stomp out one particular viewpoint?

If the latter, Texas HB 20 may be the needed relief to protect the modern town square and the Supreme Court may approve its constitutionality this autumn.

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