from the scotus-should-remember-it-protected-free-speech-online dept
It was by no means certain that the internet would enjoy full First Amendment protection. The radio is not shielded from the government in that way. Nor is broadcast television. Both Congress and the President supported placing online speech under some degree of state control. In Reno v. ACLU (1997), however, the Supreme Court could find “no basis for qualifying the level of First Amendment scrutiny that should be applied to this [new] medium.” Liberty won out.
A quarter-century later, the free internet faces an array of new threats. Sometimes the danger is announced openly and without regret. Discussing his intention to sign a law restricting minors’ access to social media, the governor of Utah recently declared Reno “wrongly decided.” There are “new facts,” he tells us. He earns points for candor. Most opponents of internet freedom attempt to hide what they’re doing. Some of these aspiring regulators even try to snatch the banner of free speech for themselves. But they all want, by hook or by crook, to curtail or evade Reno.
Many states chafe at the restraints Reno places on the government. A few have already arrived at the Supreme Court. These states endorse legal theories that would drastically shrink Reno’s scope. But they do not want Reno narrowed in a neutral, even-handed fashion. For the states in question stand on opposite sides of our nation’s culture war. Each side’s message is this: Limit Reno for thee, but not for me. Each side wants the Justices to revoke Reno’s protection for the other side.
Yet both sides appeal to the same legal principles. Each side makes arguments in its own litigation that, if accepted in the other side’s litigation, would blow up in its face. Each side makes arguments that, if given full play, could lead to Reno’s being destroyed for everyone. The two sides risk pulling the temple down on our heads.
The cases in question are 303 Creative v. Elenis, Moody v. NetChoice, and NetChoice v. Paxton. In 303 Creative, Colorado seeks to compel a Christian website designer to express a message, in the form of a website for a gay wedding, to which she objects. The U.S. Court of Appeals for the Tenth Circuit ruled for the state. The Supreme Court granted review and heard oral argument last December. In Moody and Paxton, states seek to force large social media platforms to spread messages that those platforms believe are dangerous, harmful, or abhorrent. In Moody, the Eleventh Circuit ruled for the platforms, blocking a Florida law called SB7072. In Paxton, the Fifth Circuit ruled against them, upholding a Texas law, HB20, that requires “viewpoint neutral” content moderation (i.e., if you carry Holocaust documentaries, you must carry Holocaust deniers). Petitions for certiorari have been filed in both cases, and the Court is almost certain to grant at least one of them.
The driving forces here are Colorado (supported by other blue states and the federal government) and Florida and Texas (supported by other red states). Still, each side has found able champions on the bench. Judges figure prominently in these legal debates, as we will see. Yet the Supreme Court now has the full picture. With both 303 Creative and Moody/Paxton before them, a majority of the Justices might take a different view. They might see that the best course is to defend the rule and spirit of Reno against all comers.
How is Reno being challenged? How do the attacks on it match up in 303 Creative, Moody, and Paxton? Let’s dig in.
Common Carrier / Place of Public Accommodation
Two years back, Justice Thomas, writing for himself, suggested that “some digital platforms” are “akin to common carriers or places of public accommodation.” If that’s right, he surmised, then “laws that restrict” those platforms’ “right to exclude” might satisfy the First Amendment. The state might lawfully force such entities to disseminate speech against their will.
Upholding HB20 in Paxton, Judge Oldham took the next step. Texas claimed that large social media platforms can be treated like common carriers. Oldham agreed. He concluded—in dicta; no other judge joined this part of his opinion—that HB20’s viewpoint neutrality rule “falls comfortably within the historical ambit of permissible common carrier regulation.”
The idea of common carriage has, Oldham wrote, “been part of Anglo-American law for more than half a millennium.” He explored the concept’s history at length, following it on a “long technological march” from “ferries and bakeries,” to “steamboats and stagecoaches,” to “telegraph and telephone lines,” and finally—in his mind—to “social media platforms.” He argued “the centrality of the Platforms to public discourse.” He grappled with “modern precedents.” He engaged with the “counterarguments” of “the Platforms and their amici.” No one can dispute his rigor.
The Eleventh Circuit, speaking through Judge Newsom, ruled in Moody that the platforms are not like common carriers. Newsom, too, was careful and thorough. But in any event, how much of this debate is genuinely relevant? Judge Southwick’s answer, in his dissent in Paxton, was short and to the point. “Few of the cases cited” by Judge Oldham, Southwick wrote, “concern the intersection of common carrier obligations and First Amendment rights,” and the ones that do “reinforce the idea [that] common carriers retain their First Amendment protections of their own speech.” To show that a legal principle can trump a constitutional right, in other words, it does not suffice to show that the principle has an impressive pedigree. One must establish that the principle has in fact been used to trump the constitutional right.
Here is where things get interesting. This is precisely the approach that Lorie Smith, the Christian website designer, urges the Supreme Court to deploy in 303 Creative. Colorado says that Smith must make websites for gay weddings because her business is a place of public accommodation. What must Colorado do to connect its premise and its conclusion? It must prove, Smith contends, that “public-accommodation laws historically compelled speech, not that they merely existed.” At oral argument, Justice Thomas picked up this line of thought. Is there a “long tradition,” he asked (appearing to depart from the stance he teased with two years ago), “of public accommodations laws applying to speech . . . or expressive conduct?”
Where are the cases showing that, by declaring an entity a common carrier, the state can strip that entity of its right to decide what speech it will (or will not) disseminate to the public at large? Judge Oldham cited none. Where are the cases showing that, by declaring an entity a place of public accommodation, the state can force that entity to create expressive products against its will? In response to Justice Thomas’s question, Colorado’s counsel conceded that “the historical record is sparse.”
Would conservatives be glad to see Smith forced to design websites that go against her religious convictions? Would liberals rejoice at seeing social media platforms forced to host and amplify hate speech? If the answer to these questions is no, perhaps neither side should start down this path. Perhaps neither should be trying to use common carrier or public accommodation rules to evade Reno and control the internet.
Market Power
As support for the common carrier argument, Judge Oldham asserted the major social media platforms’ market power. “Each Platform has an effective monopoly,” he insisted, “over its particular niche of online discourse.” In his view, “sports ‘influencers’ need access to Instagram,” “political pundits need access to Twitter,” and so on.
There are a number of problems with this claim. To begin with, an entity that wins itself market power does not lose its right to free speech. In Miami Herald v. Tornillo (1973), it was argued that “debate on public issues” was at that time “open only to a monopoly in control of the press.” The Court did not disagree. Nonetheless, it unanimously struck down a state law requiring newspapers to let political candidates reply to negative coverage. “Press responsibility is not mandated by the Constitution,” the Justices explained, “and like many other virtues it cannot be legislated.”
Even if market power mattered, it is far from obvious that platforms have “effective monopolies,” whether over “niches” or otherwise. A month after the Fifth Circuit issued Paxton, Elon Musk purchased Twitter, causing more than a few commentators to ditch the service for Mastodon. Influencers—and, for that matter, political pundits—can gain a large following on Snapchat, TikTok (for now), YouTube, or Rumble. More broadly, the overlap among social media products is greater than might appear at first blush. Suing to break up Facebook and Instagram, for instance, the Federal Trade Commission has asserted that the products’ common parent, Meta, dominates a market for “personal social networking services.” The only large competitor in this market, the agency alleges, is Snapchat. Yet the agency has struggled to explain what makes this market distinct. These days, in fact, Meta is scrambling to make its products more like TikTok.
So the worst thing about the “effective monopol[ies]” claim is that it bounces off the surface. The typical antitrust case is a complex dispute about costs and outputs, profit margins and elasticities, and much else besides. Judge Oldham offered a bare assertion. A just-so story. A useful belief, if one’s goal is to let states commandeer the biggest social media platforms.
No one would cry for those platforms if the judiciary were to overestimate the size and stability of their market “niches.” Indeed, many will smile at the prospect. But be careful what you wish for.
Recall that the Tenth Circuit ruled against Lorie Smith in 303 Creative. Smith’s “custom and unique services,” the court wrote, “are inherently not fungible.” They are, “by definition, unavailable elsewhere.” Smith is therefore a market of one, the court thought, and that is grounds for forcing her to speak. Outlandish? Probably so. Then again, Colorado warns that if Smith wins, belief-based restrictions on service might proliferate, leading to market foreclosure in the aggregate. And that argument is not ridiculous; it is merely speculative and weak—not unlike the “effective monopol[ies]” argument in Paxton.
Anyone tempted to use loose pronouncements of market power as a weapon of (culture) war should first picture how the tactic might be misused in a variety of other cases. One careless claim of market power begets another.
Speech vs. Conduct
On the way to upholding HB20, the Fifth Circuit relied heavily on Rumsfeld v. FAIR (2006). A federal statute required law schools to host military recruiters on pain of losing government funding. FAIR upheld this mandate. “A law school’s decision to allow recruiters on campus,” the Court reasoned, “is not inherently expressive.” The statute regulated “conduct, not speech.” It affected “what law schools must do—afford equal access to military recruiters—not what they may or may not say.”
The Fifth Circuit used FAIR as a guide. The “targeted denial of access to only military recruiters,” the court said, could not be distinguished from the “viewpoint-based” content moderation “regulated by HB 20.” In both cases, the court concluded, the regulated activity is “conduct” that lacks “inherent expressiveness.” Therefore social media platforms have no First Amendment right to control what speech they host.
This, it turns out, is a popular way to justify letting the state regulate speech. In 303 Creative, the Biden administration filed a brief in support of Colorado. Colorado’s public accommodations law “target[s] conduct,” the brief says, invoking FAIR, and it “impose[s]” only “‘incidental’ burdens on expression.” The brief cites FAIR more than two dozen times.
FAIR was authored by Chief Justice Roberts. At the oral argument in 303 Creative, he did not seem thrilled about how the decision was thrown back at him. That case involved “providing rooms,” he protested, and the Court held merely that “empty rooms don’t speak.”
The Chief Justice is on to something. Here again, the best move is not to play. Conservatives and liberals can come up with creative ways selectively to apply FAIR to this or that (but no other!) form of online speech. They can try to exploit the decision with callous craft, expecting, for some reason, that the gambit will work always in favor of their interests, and never against them. Or they can put FAIR down and affirm Reno for all.
Editorial Discretion
Which brings us to the most aggressive, and the most dangerous, of the attacks on Reno. Included within the First Amendment is a right to editorial discretion. This is why the government generally cannot tell a newspaper which articles or letters to publish, or a parade which marchers to allow, or a television channel which movies to carry. As the Eleventh Circuit said in Moody, it is why social media services are “constitutionally protected” when “they moderate and curate the content that they disseminate on their platforms.”
In Paxton, the Fifth Circuit swept this right aside. “Editorial discretion,” the court proclaimed, is not “a freestanding category of constitutionally protected speech.”
In their petition for certiorari, the platforms’ representatives cast serious doubt on this claim. They quote the Supreme Court’s discussion, across various decisions, of the “exercise [of] editorial discretion over . . . speech and speakers,” of the “editorial function” as being “itself” an “aspect of ‘speech,’” and of the right of “editorial discretion in the selection and presentation” of content. As they observe, the Fifth Circuit “essentially limited th[e] Court’s editorial discretion cases to their facts.”
That’s true—but hold on. Let us return, one last time, to 303 Creative. At argument, Justice Sotomayor sounded remarkably like Judge Oldham. “Show me where,” on the website, “it’s your message,” she asked Smith’s counsel. “How is this your story? It’s [the couple’s] story.” Counsel responded with—the right to editorial discretion. “Every page” on the website is Smith’s “message,” counsel said, “just as in a newspaper that posts an op-ed written by someone else.” Sotomayor did not seem impressed.
We must again ask whether the states would welcome consistent application of their legal principles. If Colorado successfully compels Smith to speak in 303 Creative, will it accept that it has strengthened Florida’s and Texas’s hand in Moody and Paxton? Would Florida and Texas be willing to remove the platforms’ right to editorial discretion at the price of nixing many Christian artists’ right to such discretion as well? A state could duck the question by dreaming up new and clever ways to distinguish the cases. Yes, of course. Other, very different states could do the same. That is the problem.
The Court has called for the views of the Solicitor General in Moody and Paxton. The Biden administration will be tempted to try to thread the needle. To get cute. To argue that the red-state social media laws before the Court are toxic and scary and unconstitutional, but that the blue-state social media laws in the works are beneficial and enlightened and in perfect harmony with the First Amendment.
The Solicitor General should resist the urge to make everything come out right (from a liberal perspective). Here is what she should do instead. Agree that review is warranted. Denounce SB7072 and HB20. Celebrate the right to editorial discretion. Heap praise on Reno v. ACLU. Stop.
Filed Under: 1st amendment, 303 creative v. elenis, colorado, common carrier, compelled speech, florida, free speech, internet, moody v. netchoice, netchoice v. paxton, public accommodation, reno v. aclu, supreme court, texas
