There’s no doubt about it, the Supreme Court’s latest rulings on Big Tech censorship were an enormous setback for the cause of free speech online. But if we squint hard enough, we can certainly find a silver lining.
First, the downside. In a separate set of rulings this week, the Supreme Court scuttled two attempts to protect citizens’ free speech on giant social media websites. In the first, Murthy v. Missouri, the court set a frustratingly higher bar for two states and several banished social media users to sue the White House and executive branch agencies for their deliberate collusion with Silicon Valley monopolies to stifle online expression.
Four days later, in the two NetChoice cases, the court gave no final judgment on the merits but vacated both conflicting lower court decisions regarding the state laws of Florida and Texas prohibiting Big Tech from discriminatorily censoring user content, sending the cases back for a better factual record and a corrected legal standard.
In Murthy, the majority avoided the merits of the free speech issue, choosing instead to remand the case because the censored plaintiffs lacked “standing.” The test the court imposed for standing is a gymnastic one, almost Olympian. It requires that the victims of the Biden administration’s censorship scheme must show that the timeline when the posts were suppressed matches up not only with the timing of the Biden agency’s covert demands of the Silicon Valley companies and not before but also that the subject matter censored must exactly match up with the subject matter of the demands by the White House and its agencies.
That is troublesome, particularly the last part because some of those citizens censored by this Biden administration plot were on a veritable enemies list. The Murthy opinion recognizes that the Biden administration had pressured social media monopolies to censor not just certain online speech but also specific online speakers. The majority explicitly noted that in 2021, “White House officials had pushed Facebook to remove the accounts of the “disinformation dozen” – a group of citizens who were openly blacklisted because of their opinions.
This is difficult to square with the court’s unanimous ruling a month ago in National Rifle Association of America v. Vullo, where all of the justices upheld the NRA’s lawsuit against the state of New York’s powerful financial regulatory agency for violating the First Amendment rights of the Second Amendment advocacy group. The agency’s offense? Blacklisting the NRA because of its First Amendment-protected position on gun rights.
We applaud Justice Alito’s strong dissent in Murthy that cited the NRA ruling, a court decision so recent its ink is barely dry. But then, as Alito also noted, in the NRA case, the New York agency’s free speech discrimination against the NRA had been “ham-handed,” as compared to the censorship ploy that the Biden White House and its agencies employed with “sophistication.” The court’s past doctrine of erring in favor of free speech in close cases seems to be AWOL in the Murthy online speech context.
Enter the states of Florida and Texas and their state law remedies for online censorship by monopolies. They both made a valiant attempt to protect online free speech by passing state laws requiring that the largest social media companies avoid viewpoint discrimination when they moderate user content. But once again, the Supreme Court threw up a roadblock.
In Moody v. NetChoice LLC and NetChoice LLC v. Paxton, the court vacated both lower court decisions and tossed them back for further legal and factual analysis. NetChoice’s strategy of arguing for free speech using a facial challenge to the laws (rather than an as-applied approach) left the court unsure how much of the activities and expressive tools of the sites were actually affected by the laws. But one thing is certain: The majority held that “the editorial judgments [of Big Tech platforms] influencing the content of those [social media] feeds are, contrary to the Fifth Circuit’s view, protected expressive activity” under the First Amendment, and thus cannot be unduly burdened.
With this SCOTUS background, it is understandable why John Daniel Davidson writes, “Don’t repose your hopes for the survival of the republic and our Constitution in an elusive conservative majority of black-robed justices.” The top of our judicial branch has made litigation unnecessarily difficult as a remedy against the executive branch’s use of Big Tech to subvert the First Amendment. The court also raises serious questions about attempts to regulate the anti-free speech conduct of market-dominant social media giants, at least based on the factual and legal record so far from these two states.
The Silver Lining
But there is one avenue — the legislative branch — still left; thus, our potential silver lining. However, it only matters if these setbacks are enough to marshal public pressure sufficient to force Congress to act and do so quickly. Big Tech companies are plowing ahead — they are not waiting for Washington.
The tipping point for the dominating power and influence of a handful of Big Tech companies as a force of suppression is due largely to the extraordinary gift that Congress gave them of immunity from most lawsuits under Section 230 of the Communications Decency Act, enacted back when the World Wide Web was in its infancy. Every First Amendment claim against the companies has failed, and so have attempts to sue under anti-terrorism laws when foreign killers use social media to recruit and inspire. Occasionally, courts grant a few grudging exceptions to Section 230’s near-bulletproof legal shield. A few weeks ago, the 9th Circuit Court of Appeals held that Section 230 was not a barrier to some contract claims but also predictably ruled that platforms are still protected from tort and unfair business claims because of Section 230.
Numerous congressional amendments to Section 230 and regulatory plans have been floated to solve the problem of Big Tech overreach, but none have passed. They run the gamut. The CASE-IT Act proposes to remove Section 230 protections for the biggest social media companies that fail to use a First Amendment-type approach to content moderation. It would do for social media free speech online what the Religious Freedom Restoration Act (RFRA) has successfully done for the free exercise of religion. Additionally, it only regulates the market-dominant monopolies and not the smaller companies, and only if the biggest sites wish to continue reaping the lavish blessings of Section 230. That seems to line up nicely with the court’s comment in the NetChoice opinion, voicing an antitrust tone that for a “well-functioning sphere of expression” to exist, “the government can take varied measures, like enforcing competition laws, to protect that access” of citizens “to information from many sources.”
There is also an attractive bill seeking to regulate Big Tech companies as common carriers. And as a strategic minimum, another bill recently proposed by House Energy and Commerce Chair Cathy McMorris-Rodgers would simply create a sunset expiration date for Section 230, an approach that would force Congress to at least do something substantive before a fixed deadline.
Approaching Nov. 5, we should brace for even more silencing of political candidates and American citizens by Big Tech, especially with the strong encouragement of a White House now energized by Supreme Court decisions. Because Congress needs to act, so do we. Admittedly, these are weighty questions of liberty and constitutional governance. But the first three words of the Constitution’s Preamble — “We the People” — still remind us with surprising simplicity who is accountable, first and last, for the stewardship of our freedoms.
Craig L. Parshall is a constitutional attorney and Senior Advisor for Civil Liberty and Legal Policy with the American Principles Project. Jon Schweppe is the Policy Director at American Principles Project.
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