Next week, the Supreme Court will hear oral argument in NetChoice v. Paxton and Moody v. NetChoice. The cases are about a pair of laws, enacted by Texas and Florida, that attempt to force large social media platforms such as YouTube, Instagram, and X to host large amounts of speech against their will. (Think neo-Nazi rants, anti-vax conspiracies, and depictions of self-harm.) The states’ effort to co-opt social media companies’ editorial policies blatantly violates the First Amendment.
Since the laws are constitutional trainwrecks, it’s no surprise that Texas’s and Florida’s legal theories are weak. They rely heavily on the notion that what social media companies do is not really editing — and thus is not expressive. Editors, Texas says in a brief, are “reputationally responsible” for the content they reproduce. And yet, the state continues, “no reasonable observer associates” social media companies with the speech they disseminate.
This claim is absurd on its face. Everyone holds social media companies “reputationally responsible” for their content moderation. Users do, because most of them don’t like using a product full of hate speech and harassment. Advertisers do, out of a concern for their “brand safety.” Journalists do. Civil rights groups do. Even the Republican politicians who enacted this pair of bad laws do — that’s why they yell about how “Big Tech oligarchs” engage in so-called censorship.
That the Texas and Florida GOP are openly contemptuous of the First Amendment, and incompetent to boot, isn’t exactly news. So let’s turn instead to some delicious ironies.
Consider that the right’s favorite social media addict, robber baron, and troll Elon Musk has single-handedly destroyed Texas’s and Florida’s case.
After the two states’ laws were enacted, Elon Musk conducted something of a natural experiment in content moderation—one that has wrecked those laws’ underlying premise. Musk purchased Twitter, transformed it into X, and greatly reduced content moderation on the service. As tech reporter Alex Kantrowitz remarks, the new approach “privileges” extreme content from “edgelords.”
This, in turn, forces users to work harder to find quality content, and to tolerate being exposed to noxious content. But users don’t have to put up with this — and they haven’t. “Since Musk bought Twitter in October 2022,” Kantrowitz finds, “it’s lost approximately 13 percent of its app’s daily active users.” Clearly, users “associate” social-media companies with the speech they host!
It gets better. Last November, Media Matters announced that, searching X, it had found several iconic brands’ advertisements displayed next to neo-Nazi posts. Did Musk say, “Whatever, dudes, racist content being placed next to advertisements on our site doesn’t affect X’s reputation”? No. He had X sue Media Matters.
In its complaint, X asserts that it “invests heavily” in efforts to keep “fringe content” away from advertisers’ posts. The company also alleges that Media Matters gave the world a “false impression” about what content tends to get “pair[ed]” on the platform. These statements make sense only if people care — and X cares that people care — about how X arranges content on X.
X even states that Media Matters has tried to “tarnish X’s reputation by associating [X] with racist content.” It would be hard to admit more explicitly that social-media companies are “reputationally responsible” for, because they are “associated” with, the content they disseminate.
Consider also that Texas ran to Musk’s defense. Oblivious to how Musk’s vendetta hurts Texas’s case at the Supreme Court, Ken Paxton, the state’s attorney general, opened a fraud investigation against Media Matters (the basic truth of whose report Musk’s lawsuit does not dispute).
Consider finally how Texas’s last-ditch defense gets mowed down by the right’s favorite Supreme Court justice. According to Texas, social-media companies can scrub the reputational harm from spreading abhorrent content simply by “disavowing” that content. But none other than Justice Clarence Thomas has blown this argument apart. If, Thomas writes, a state could force speech on an entity merely by letting that entity “disassociate” from the speech with a “disclaimer,” that “would justify any law compelling speech.”
Only the government can “censor” speech. Texas and Florida are the true censors here, as they seek to restrict the expressive editorial judgment of social-media companies. That conduct is expressive. Just ask Elon Musk. And that expressiveness is fatal to Texas’s and Florida’s laws. Just ask Clarence Thomas. Texas’s and Florida’s social-media speech codes aren’t just unconstitutional, they can’t even be defended coherently.
Corbin Barthold is internet policy counsel at TechFreedom.
As I just made clear, I’m no fan of Twitter’s new “private media” policy, which I think comes from a well-meaning place, but will lead to widespread abuse by malicious actors seeking to hide evidence of bad behavior (indeed, there’s evidence this is already happening). But that’s no excuse for Senator Josh Hawley (supporter of the January 6th insurrection, and who seems to think his job as Senator from the confused state of Missouri is to product manage internet services). Hawley reacted to this new policy by saying that it’s a reason to break up Twitter. He says “we oughta break them up” at the end of a very bizarre interview with Fox News host Pete Hegseth.
We’ll get to the other nonsense from Hegseth and Hawley in a moment, but let’s start by focusing on the “we oughta break them up” line. First off, he’s clearly saying that the company needs to be broken up in response to the company’s editorial decisions. That’s… just a blatant violation of the 1st Amendment. Hell, just imagine how he (or Hegseth!) would respond to a Democratic Senator saying Fox should be “broken up” because of the company’s editorial bias. I imagine both Hawley and Hegseth would go nuts about such unconstitutional overreach. But here, Hawley suggests breaking up Twitter in response to its editorial choices, and Hegseth seems happy to support that position.
That’s because neither of them have any principles. They’re fine with ignoring the Constitution if it allows them to attack their perceived ideological enemies.
Second, under what possible theory would you “break Twitter up” here. Twitter is relatively small as a social media player. Reports from about a month ago show Twitter as the 15th largest social media service globally. Even in just the US, it appears that Twitter comes in at least 7th place and possibly lower, depending on WhatsApp and TikTok’s growth.
So the company, in no way, qualifies for any sort of antitrust treatment no matter how you look at it. The only possible reason to suggest that we should “break up” Twitter is because you disagree with their policies, which is a blatantly authoritarian position. Which, well, fits when we’re talking about Josh Hawley.
As for Hegseth, his little bit of pandering is ridiculous as well. After mispronouncing both the first and last name of Twitter’s new CEO, Parag Agrawal, he blames Agrawal for the new policy (that surely was planned much earlier). He then goes on a rant about how this policy is “meant to protect” antifa and Black Lives Matter protestors, but insists that it won’t be used to protect conservatives.
Of course, as we showed in our original post, nearly all of the examples of enforcement so far have gone the other way. The policy has been used to takedown images and videos of Trumpists and white nationalists who didn’t like being called out by others. But, never expect a Fox News host to let facts get in the way of winding up the ignorant base. Hegseth also fails to mention the fact that the policy doesn’t apply to public figures or newsworthy events — and names multiple public figures and newsworthy situations that he insists will be “censored” under the policy. Basically, pure disinformation.
He then says:
It gives the social media platform even more control, which is scary. More control over what can be shown. And more proof that they are, indeed, a publisher, and not simply (eyeroll) an unbiased platform.
Except basically all of that is bullshit. Twitter has always had control over what it does and does not allow on its platform. That’s how terms of service work. It’s no different from the fact that Fox News and Hegseth would never have me on Fox News to explain to his face why he’s an ignorant, pandering fool. Because that’s their editorial discretion. That’s the right of Fox News, just as it’s the right of Twitter. Hell, Twitter allows WAY MORE speech on its platform that its executives disagree with than Fox News ever has and ever will.
And to then trot out the bogus and meaningless “publisher” / “platform” distinction (and throwing in a gratuitous and meaningless “unbiased”) makes no sense. A publisher has 1st Amendment rights to choose what to host and what not to. And Twitter was never an “unbiased platform.” That’s just something that people made up to attack the company.
Hegseth then claims that Twitter will now use this to censor content “they don’t want you to see.” Which is… not at all how this works. He then brings on Hawley, who rambles on bizarrely and disconnected from reality. He insists that this won’t be used to “protect the privacy of conservatives,” which is nonsense. Again, all of the examples we’ve seen of content being taken down are examples of it being Hawley’s fans and supporters who are abusing this new policy to hide their own bad behavior. Hawley then flat out lies about how Twitter operates, claiming that Twitter “tracks us around the web” builds a “dossier” on us and “sells our information.” Twitter… doesn’t actually do that? None of these companies “sell our information.” They sell advertising, which is targeted based on our information but that’s very different. And while you could say that Google and Facebook “track us,” Twitter really doesn’t except in the most limited of ways.
This is just random rage from Hawley in which he throws in a bunch of catchy sayings that don’t actually apply to Twitter, because it riles up his ignorant base (the only kind of people who would ever support Hawley, apparently) and then calls for the company to be broken up. It’s cynical, hypocritical and disgusting — or basically a Josh Hawley specialty.
Earlier this month Ars Technica reported on the arrest of the alleged operators of Mugshots.com, a website that does what it says on the tin: hosts mugshots. The issue is, the site operators didn’t just host mugshots; they also charged people to have their mugshots removed from the site through a companion site, Unpublisharrest.com.
Assuming the arrest warrant is fairly stating things, the site’s operators may not have had the best of intentions in running their site the way they did. According to the facts alleged they were more interested in making money by charging people to have their pictures removed from their site than in serving as any sort of public records archive.
But it shouldn’t matter why they pursued the editorial policy that they did. First of all, mugshots are generally public records, and for good reason. As South Dakota’s attorney general Mark Jackley noted last year, when South Dakota declared them to be public records:
“The release of criminal booking photographs to the public will result in greater transparency in the criminal process, enhance public safety, and will further assist the media and the public in the proper identification of individuals in the criminal process.”
People are ordinarily allowed to share public records on their websites, just as they may share any other lawful information. People are also free to be arbitrary and capricious in how they choose what information to share. They are even free to be financially motivated in making those decisions.
But according to authorities in California, if the decision on what information to share is linked to a profit incentive (from the arrest warrant: “The motive behind posting the damaging material is financial gain.”), and that information is a mugshot, you go to jail. In the case of the Mugshots.com operators, authorities have predicated their arrest on some alarming statutory language:
As of January 1, 2015, California Civil Code Section 1798.91 .1, Subdivision makes it unlawful for any person engaged in publishing or otherwise disseminating a booking photograph through a print or electronic medium to solicit, require, or accept the payment of a fee or other consideration from a subject individual to remove, correct, modify, or to refrain from publishing or otherwise disseminating that booking photograph. By posting the booking photograph online, and requiring a fee to have it removed, the owners and operators of Mugshots.com and Unpublisharrest.com are operating their websites for an unlawful purpose.
In addition, the authorities construed what the operators of Mugshots.com did as identity theft:
California Penal Code Section 530.5 defines identify theft, stating: “Every person who willfully obtains personal identifying information . . . of another person, and uses that information for any unlawful purpose. . . without the consent of that person, is guilty of a public offense. Section 530.55 identifies a ‘person’ as a natural person, firm, company, corporation or any other legal entity. The section defines ‘personal identifying information’ as any ‘name, address . . . or other unique physical representation.’ Because Mugshots.com and Unpublisharrest.com have used, and continue to use, the booking photographs and PII of individuals for purposes of selling the service of removing the photographs and information, the owners are in violation of California Penal Code Section 530.5, identity theft, a felony.”
Taken together, the arrest warrant concludes, the site operators are guilty of extortion and conspiracy to commit extortion. But to prove extortion prosecutors must show that the accused threatened a victim either with violence, the accusation of a crime, or the exposure of a secret, if they didn’t pay the accused. Yet the defendants are accused of none of these things. Not only is there no issue of threatened violence, but what the site operators are alleged to have done in no way involves revealing a secret or accusing another of a crime. Instead it is the state that has already accused the site operators’ purported “victims” of a crime, and its having done so is no secret. The state’s accusation against these people became public when it originally released the mugshots, meaning there is nothing that the site operators could have been threatening to reveal that wasn’t already revealed.
This apparently sloppy reading of the extortion statute, compounded with the 2015 statutory language giving mugshots a sort of magical status that prevents them from being treated as an ordinary public record, represents a chilling incursion on protected First Amendment activity. It’s one thing to impose liability for publishing content that isn’t lawful, perhaps because it’s defamatory, infringing, or somehow intrinsically wrongful unto itself. But it’s another thing entirely to impose liability for publishing content that is entirely lawful – especially, as in this case, when it is not only lawful but a public record.
California authorities would likely argue that the prosecution is not about liability for speech, but liability arising from the decisions about what speech got spoken. (Or, more particular to this case, remained spoken, for the state is not prosecuting the site operators for having posted the mugshots in the first place.) But this is a distinction without a difference. Indeed, decisions about what we choose to say can be as expressive as anything we actually do say. The government ordinarily does not get to come in and force us to make those decisions in any particular way. Freedom of expression means that we are at liberty to decide what to say, and then what not to say, for whatever reason we might decide. Even when these expressive choices are guided by a profit motive.
Were that not the case, think of how chilling it would be to profit-driven news media if their editorial decisions had to be free from any financial concern in order to retain First Amendment protection. Even in terms of mugshots themselves, think about how chilling it would be if others could not freely use them to tell us about the world around us, if there was money to be made in the process. As case in point, the very same week the arrest warrant was used to extradite the site operators back to California, the New York Times ran a story about the efforts of journalist and photographer Eric Etheridge to document the lives of Freedom Riders.
Among the important artifacts of this historic campaign are more than 300 mug shots taken of the Freedom Riders in Jackson, now the subject of “Breach of Peace: Portraits of the 1961 Mississippi Freedom Riders” (Vanderbilt University Press). In it, the journalist and photographer Eric Etheridge provides visual and oral histories of these courageous men and women, juxtaposing vintage mug shots with short biographies, interviews and contemporary portraits. Originally published in 2008, this expanded edition, with updated profiles and additional portraits…
It is a book that is for sale, so it would seem there is a profit motive somewhere. But consider whether this important historical work could be released if authorities in California – or, perhaps more saliently, in Mississippi, where the mugshots are from – could scrutinize the expressive decisions that went into the book’s use of the pictures because it profited from that use.
Yet that’s what the California authorities have decided they are entitled to do with the Mugshots.com site. The arrest warrant is dismissive towards the free speech interests of the site’s operators, accusing them of “using freedom of speech theories in justifying the activity.” Of course, that’s what the First Amendment is for, to protect expressive activities that authorities do not like. And authorities really don’t like what happened here.
As noted above, the optics in this case are not great. People felt desperate to have their mugshots removed from the Internet, and the site operators profited from that desperation. It feels criminal, but just because they may have had nefarious intent does not mean that they committed a crime. Just reading about the arrest brought to mind the Monty Python sketch where a bunch of gangsters connived a devious plot to go to a jeweler’s to obtain an expensive watch – that they paid for.
Sure, it looks like they are up to no good, but to determine whether a crime has been committed we can’t just consider how it looks. We have to look closely at the underlying lawfulness of the activity, not the optics surrounding it, and for the very same reason that California authorities are now interested in policing the use of mugshots: to prevent unwarranted inferences of criminal culpability. As the New York Times wrote about the Freedom Riders book:
If these mug shots inadvertently captured the humanity and special qualities of their principled subjects, as Mr. Etheridge observed, their intention was nefarious: to publicly impugn and humiliate people whose only crime was to advocate equality through peaceful protest. No matter their purpose, mug shots inevitably imply aberrance or delinquency, whether or not the people they depict are eventually found to be guilty.
But that’s what the California prosecutors have done: impute “aberrance or delinquency” to draw unwarranted inferences about criminal culpability from an act that the law cannot constitutionally criminalize. This inference has already been used to strip the site operators of their constitutional right to express themselves anonymously due to at least three search warrants that were served on their service providers. These warrants were issued upon probable cause, but the only probable cause that can be construed here is that the site operators engaged in expressive activity authorities did not like. Efforts by these authorities to now extradite, further prosecute, and potentially leave the site operators vulnerable to civil damages should not be cheered by anyone who might prefer not to experience the same as a result of their own lawful expression.
We were bothered a few years ago to see the usually insightful Tim Wu suddenly arguing that search engine results had no First Amendment protections. The idea seemed ludicrous. Search engine results are opinions from that search engine about what is the most appropriate response to a query. It is clearly a form of speech and thus should be protected. The specific question, however, has barely been tested in court. However, a new ruling makes it quite clear that search engine results are protected by the First Amendment. Of course, it’s in a case where this may feel somewhat ironic: some activists had sued Chinese search engine Baidu for refusing to show results pointing to their own pro-Chinese democracy writings. They argued that this violated New York’s “public accommodations law.”
And while it may seem funny to think that a website that is clearly trying to block access to certain content is standing up for the First Amendment, the ruling gets it exactly right, in noting that search engines have every right, under the First Amendment, to make editorial decisions about what to include and what not to include:
In short, Plaintiffs’ efforts to hold Baidu accountable in a court of law for its editorial
judgments about what political ideas to promote cannot be squared with the First Amendment.
There is no irony in holding that Baidu’s alleged decision to disfavor speech concerning
democracy is itself protected by the democratic ideal of free speech. As the Supreme Court has
explained, “[t]he First Amendment does not guarantee that . . . concepts virtually sacred to our
Nation as a whole . . . will go unquestioned in the marketplace of ideas.” Texas v. Johnson, 491
U.S. 397, 418 (1989). For that reason, the First Amendment protects Baidu’s right to advocate
for systems of government other than democracy (in China or elsewhere) just as surely as it
protects Plaintiffs’ rights to advocate for democracy. Indeed, “[i]f there is a bedrock principle
underlying the First Amendment, it is that the government may not prohibit the expression of an
idea simply because society finds the idea itself offensive or disagreeable.” Id. at 414 (citing
cases). Thus, the Court’s decision — that Baidu’s choice not to feature “pro-democracy political
speech” is protected by the First Amendment — is itself “a reaffirmation of the principles of
freedom and inclusiveness that [democracy] best reflects, and of the conviction that our
toleration of criticism . . . is a sign and source of our strength.”
My first thought on hearing about the case was that there clearly should be no issue here at all, since Baidu is a private corporation, not a government actor. But the real issue is over NY’s public accommodations law — and whether or not that compels Baidu to “speak” in a certain way by changing its algorithms and results. It’s that point that the judge is making. The public accommodations law cannot be used to compel speech in this manner, which leads him to properly note that Baidu’s choices are a form of protected expression.
The judge highlights a number of similarly applicable cases, first comparing Baidu to a newspaper, in which editorial decisions are considered protected speech. Then it compares it more directly to a different, though in some ways similar, case — Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, in which the courts said that private parade organizers can’t be forced to include groups they disagree with:
The question in Hurley was whether Massachusetts could “require private citizens who
organize a parade to include among the marchers a group imparting a message the organizers do
not wish to convey.” Id. at 559. The Court held that allowing the state to do so would “violate[]
the fundamental rule of protection under the First Amendment, that a speaker has the autonomy
to choose the content of his own message.” Id. at 573; see also, e.g., Pac. Gas & Elec. Co. v.
Pub. Util. Comm’n of Cal., 475 U.S. 1 (1986) (plurality opinion) (relying on Tornillo to
invalidate a rule requiring a privately owned utility to include with its bills an editorial newsletter
published by a consumer group critical of the utility’s ratemaking practices). “‘Since all speech
inherently involves choices of what to say and what to leave unsaid,’” the Court explained, “one
important manifestation of the principle of free speech is that one who chooses to speak may also
decide ‘what not to say.’” Hurley, 515 U.S. at 573 (quoting Pac. Gas & Elec. Co., 475 U.S. at
11, 16 (plurality opinion)). Notably, the Court found that principle applied even though the
parade organizers did not themselves create the floats and other displays that formed the parade
and were “rather lenient in admitting participants.” Id. at 569. “[A] private speaker,” the Court
stated, “does not forfeit constitutional protection simply by combining multifarious voices, or by
failing to edit their themes to isolate an exact message as the exclusive subject matter of the
speech. Nor . . . does First Amendment protection require a speaker to generate, as an original
matter, each item featured in the communication.”
In both of these cases, I would personally disagree with the choices made. I think it’s awful that a Chinese search engine regularly attempts to block access to pro-democracy writings and I equally think it’s ridiculous that various St. Patrick’s Day parades actively seek to block gay, lesbian and bisexual groups from participating. Yet, in both cases, as private organizations, they have the right to decide what to include and not include. Just as everyone who finds those decisions despicable has the right to speak out against them.
This ruling may feel ironic in that it appears to further the cause of Chinese government censorship in the name of the First Amendment, but as Judge Jesse Furman notes, there’s really nothing ironic at all in protecting the right of private parties to make their own editorial decisions, no matter how offensive they might seem.
