It’s Time We Defend the First Amendment on Social Media
Traditionally, the First Amendment has protected speech in public spaces. But when virtually all political expression takes place on privately owned forums, it becomes a governmental duty to defend that fundamental right when it is threatened, whether that be in the streets and in parks or on the internet. When Twitter disabled then-president Donald Trump’s account following the 2021 Capitol riot, reactions were mixed across the political spectrum. While some praised the move as responsible content moderation, others condemned it as just one instance among many of anti-conservative bias on social media platforms. Yet there was one thing everyone could agree on: the debate over the role of social media in politics was only just beginning.
In April of 2021, Florida’s legislature clarified its position in this debate when it passed a law limiting social media platforms’ ability to moderate political content. The bill, enthusiastically signed by Republican Governor Ron DeSantis, prohibits the sites from deplatforming political candidates and requires the maintenance of a heavily scrutinized list of moderation decisions which must include reasons for every action of political censorship. The bill is premised upon the protection of free speech rights and compares social media platforms to public utilities, expanding government oversight into the administrative decisions of private companies.
Unsurprisingly, the law was immediately challenged by NetChoice, a trade association which lists among its members Twitter, Google, TikTok, and Meta, the parent company of Facebook. After a district court granted NetChoice a preliminary injunction, halting enforcement of the law, Florida appealed to the Eleventh Circuit, the federal appeals court for Alabama, Georgia, and Florida, where the injunction was upheld on the grounds that restricting the platforms’ ability to moderate their users violated their First Amendment right to free speech.
Yet, that same month, the Fifth Circuit, which covers Texas, Mississippi, and Louisiana, made a very different decision regarding a similar law passed by Texas’s Republican government a few months after the Florida bill. In its opinion, the Fifth Circuit emphatically rejected the platforms’ invocation of the First Amendment, arguing that the Constitution confers a right to speech, not a right to censorship. On those grounds, the court stayed a district court injunction against Texas’s law, allowing Texas to resume enforcement of House Bill 20.
The opposing decisions create a circuit split, a phenomenon that occurs when two federal appellate courts rule differently on similar questions. The lack of consensus within the judiciary all but guarantees that the final stop for the Texas and Florida laws will be the Supreme Court, a direction favored by both the states and NetChoice. The Supreme Court previously engaged with the issue when it granted a motion to vacate the Fifth Circuit’s stay last May, once again forcing Texas to pause on enforcing its bill. But when the high court eventually rules on the merits, its findings may radically alter the freedom of social media platforms to moderate political speech as they see fit.
As it stands, the freedom to moderate seems to come at the cost of the constitutional freedom of all Americans to engage in protected political speech. Appellate courts and ultimately the Supreme Court should correct this by upholding free speech and ruling in favor of the states. Not only would this conform with the spirit of the First Amendment, it would also align with past precedent and accurately resolve the most prominent legal issues in both cases.
The central dispute in the NetChoice cases puts the free speech rights of social media platforms–indisputably private actors–in a clash against the duty of states to protect the free speech rights of social media users. This conflict is worth resolving because access to social media is a constitutional right of all American citizens, and it is one now enshrined in precedent. As recently as 2017, the Supreme Court described social media in Packingham v. North Carolina, (582 U.S. (2017)) as a “principal source” for keeping up with world events and for “speaking and listening in the public square” (8). In Packingham, the Court answered any and all doubts as to whether Americans are entitled to access social media platforms. The largest and most influential of those platforms, namely Twitter, Facebook, Google, and TikTok, are the largest stakeholders in the NetChoice cases. The regulation of communications on such platforms was labeled by Columbia Law School Professor Timothy Wu a “de facto First Amendment tradition.”
Admittedly, NetChoice does not dispute the necessity of social media spaces (and it would be a terrible industry representative if it did). Instead, the platforms present their claims as issues of constitutional interpretation. Perhaps the most impactful argument they make is that by forcing them to display content on their sites, the states encroach on the corporations’ own First Amendment protections by compelling them to display speech which they would otherwise choose to censor. This argument finds some support in Wooley v. Maynard (430 U.S. 705 (1977)), where Chief Justice Burger’s majority opinion articulated a “right to refrain from speaking at all,” prohibiting states from requiring private entities to speak against their will. The platforms’ accusation against the states demonstrates the conflicting applications of the First Amendment when it comes to social media. On one hand, users of social media are concerned about their right to free speech on platforms. On the other hand, social media companies are concerned about their right to not allow certain speech on their privately owned platforms. This right, however, is not as clear-cut as the platforms portray it; there is an abundance of cases where the courts have sided with the government when it required private actors to facilitate or display speech against their will.
One such case is PruneYard Shopping Center v. Robins (447 U.S. 74 (1980)), where the Court upheld a law forcing privately owned shopping centers to allow political pamphleteering on their premises. In finding for the respondents, the Court signaled its approval of state laws requiring private corporations to host political speech in spite of the corporations’ protests. The matter becomes more complicated, however, when one considers Miami Herald v. Tornillo (418 U.S. 241 (1974)), where the Court held that a state could not require a newspaper to offer a “right of reply” to political candidates criticized in one of the paper’s articles. At first, this ruling appears discouraging for Florida and Texas’ lawyers as good law which seems to directly contradict PruneYard. But the decision in Miami Herald was premised on an understanding of an article as the newspaper’s own, affiliated speech, meaning the Court’s ruling forbids governments from compelling an organization to speak. Crucially, in the NetChoice cases social media platforms are not being forced to issue their own company-affiliated statements. The states are merely regulating the platforms’ freedom to refuse to host speech on the basis of political viewpoint. PruneYard is thus more applicable, since it features a state requiring an organization to merely host third-party speech. Evidently, then, precedent does in fact allow Florida and Texas to force social media platforms to carry even disagreeable political speech.
Beyond being compelled to produce involuntary speech, the Eleventh Circuit points out that the platforms’ own willful speech and expressive conduct is suppressed by the new laws. This rather creative claim relies on the notion that moderation is in and of itself an act of speech. When a social media platform censors a post or user, it appears to engage in the “dissemination” and “publishing” of information, which the Eleventh Circuit labeled “inherently expressive conduct” (35). This claim finds some support in Hurley v. Irish-American GLIB Association (515 U.S. 557 (1995)), where the Supreme Court held that the First Amendment is applicable to the “presentation of an edited compilation of speech” (570). At first glance, this appears to indicate that because social media companies’ censorship decisions signal their disapproval of some speech and approval of others, the decisions are themselves an expression of the companies’ beliefs, making censorship an expressive act protected by the constitutional guarantee of freedom of speech. Restricting platforms’ moderation of content would therefore be a violation of the corporations’ First Amendment rights.
As is the case with most of the Eleventh Circuit’s opinion, however, this conclusion seems far less clear upon further examination of Hurley’s facts. At the center of the dispute in Hurley was a parade whose private organizers turned away an LGBT rights group’s request to participate, a decision the Supreme Court protected. But a parade is expressive in a way social media moderation can never be. A reasonable observer would be justified in associating the message of one group marching in a parade with the views of the parade’s organizers. This is because parades are often held with the explicit purpose of celebrating or highlighting the participants. Social media, on the other hand, is widely regarded as a forum for free discussion and exchange of ideas, whether they are serious or trivial. Social media companies have never professed their endorsement for each and every post displayed on their sites, nor are statements expressed by users of the platforms associated by any reasonable person with views held by the owners of those platforms. The Eleventh Circuit’s reliance on Hurley is thus misguided; Supreme Court precedent would not consider the platforms’ content moderation to be protected speech or expressive conduct. Put plainly, the restriction of content moderation by social media platforms does not violate the platforms’ First Amendment rights.
In today’s political climate, it is more important than ever that we protect the right to engage in and benefit from political discourse, and nowhere is that right exercised more frequently than on social media. We have already let tech giants—to quote Justice Kennedy in Packingham—monopolize the “public square,” and we would be remiss if we allowed them to become overlords of what have always been sacred spaces in American society. Florida and Texas have every right and every responsibility, both morally and legally, to defend Floridians and Texans expressing their political views on social media. Other states should follow suit, and the courts should look to the likes of PruneYard and Packingham for the legal ammunition to uphold political expression, a duty our judicial system has carried out since America’s founding.
Edited by Isabel Coberly and Giulio Maria Bianco