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The Supreme Court will decide how the First Amendment applies to social media| GuyWhoKnowsThings


The most important First Amendment cases of the Internet age, which will be heard by the Supreme Court on Monday, may revolve around a single question: Are platforms like Facebook, YouTube, TikTok and commercial or telephone companies?

The two cases come to court dressed in politics, as they concern laws in Florida and Texas intended to protect conservative speech by prohibiting major social media sites from removing posts based on the opinions they express.

But the enormous question the cases present transcends ideology. It's about whether tech platforms have the right to freedom of expression to make editorial judgments. Choosing the right analogy from court precedent could decide the matter, but none of the available ones fit perfectly.

If the platforms are like newspapers, they will be able to publish whatever they want without government interference. If they are like private shopping malls open to the public, they may be required to allow visitors to say whatever they want. And if they're like phone companies, they have to broadcast everyone's speech.

“It is not entirely obvious how our existing precedents, which predate the Internet era, should apply to large social media companies,” Justice Samuel A. Alito Jr. wrote in a 2022 dissent when one of the cases briefly reached the Supreme Court.

Supporters of the state laws say they encourage free speech, giving the public access to all points of view. Opponents say the laws trample on the platforms' own First Amendment rights and would turn them into cesspools of filth, hate and lies. One contrary writingof liberal professors, urged the justices to uphold the key provision of the Texas law despite the harm they said it would cause.

What is clear is that the court's decision, expected in June, could transform the Internet.

“It's hard to overstate the importance of these cases for free speech online,” said Scott Wilkens, an attorney for the Knight First Amendment Institute at Columbia University, who presented a friend of the court writing in support of neither side in the two cases, saying that each had taken an extreme position.

The cases concern laws enacted in 2021 in Florida and Texas aimed at prohibiting major platforms from removing posts that express conservative views. They differed in their details, but both were animated by frustration on the right, particularly over the decisions of some platforms. ban President Donald J. Trump after the January 6, 2021 attack on the Capitol.

In a declaration issued when he signed the Florida bill, Gov. Ron DeSantis, a Republican, said the law was intended to promote right-wing views. “If Big Tech censors enforce the rules inconsistently, to discriminate in favor of the dominant ideology of Silicon Valley, they will now be held accountable,” he said.

Governor Greg Abbott of Texas, also a Republican, said almost the same when he signed his state's bill. “It is now the law,” she said, “that conservative views in Texas cannot be banned on social media.”

The two trade groups that challenged the laws, NetChoice and the Computer & Communications Industry Association, said the platforms had the same First Amendment rights as conventional news media.

“Just as Florida may not tell the New York Times what op-eds to publish or Fox News what interviews to air,” the groups told the judges, “it may not tell Facebook and YouTube what content to broadcast. When it comes to disseminating speech, decisions about which messages to include and exclude are the responsibility of private parties, not the government.”

The states took the opposite position. Texas law, Ken Paxton, state attorney general, wrote in a short“it simply allows voluntary communication on the world's largest telecommunications platforms between speakers who want to talk and listeners who want to listen, treating the platforms like telegraph or telephone companies.”

The two laws suffered different fates in the lower courts.

In the Texas case, a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit. reversed lower court order blocking state law.

“We reject the platforms' attempt to extract a free censorship right from the Constitution's free speech guarantee,” Justice Andrew S. Oldham wrote for the majority. “The platforms are not newspapers. “His censorship is not expression.”

In the Florida case, the 11th Circuit largely maintained a preliminary injunction blocking the state law.

“Social media platforms exercise editorial judgment that is inherently expressive.” Judge Kevin C. Newsom wrote for the panel. “When platforms choose to remove users or posts, deprioritize content in viewers' feeds or search results, or penalize violations of their community standards, they engage in activities protected by the First Amendment.”

Forcing social media companies to broadcast essentially all messages, their representatives told the judges“would force platforms to spread all kinds of objectionable views, such as Russian propaganda that claims their invasion of Ukraine is justified, ISIS propaganda that claims extremism is justified, neo-Nazi or KKK speech that denies or “They support the Holocaust, and encourage children to engage in risky or unhealthy behaviors, such as eating disorders.”

The supporting summaries mostly divide along predictable lines. But there was one notable exception. To the surprise of many, some prominent liberal professors presented a brief urging the judges to defend a key provision of Texas law.

“There are serious and legitimate public policy concerns regarding the law at issue in this case,” wrote the professors, including Lorenzo Lessig from Harvard, wu team from Colombia and Zephyr's Teaching of Fordham. “They could lead to many forms of amplified hate speech and harmful content.”

But they added that “bad laws can set a bad precedent” and urged judges to reject the platforms' request to be treated as media outlets.

“To be clearer: Facebook, Twitter, Instagram and TikTok are not newspapers,” the professors wrote. “They are not publications with limited space that depend on editorial discretion when choosing which topics or issues to highlight. Rather, they are platforms for widespread public expression and discourse. “They are their own beast, but they are much closer to a public shopping center or a railway than to The Manchester Union Leader.”

In an interview, Professor Teachout linked the Texas case to the decision of Citizens Unitedthat repealed a campaign finance law that regulated corporate spending based on the First Amendment.

“This case threatens to be another expansion of corporations' speech rights,” he said. “In fact, it may end up being a Trojan horse, because the sponsors of the legislation are very unpleasant. “We should be really cautious about expanding companies' speech rights just because we don't like certain laws.”

Other teachers, including Richard L. Hasen of the University of California, Los Angeles, warned the judges of a brief support to the challengers that prohibiting platforms from removing political posts could have serious consequences.

“If Florida and Texas' social media laws are allowed to remain in place,” the report said, “they would frustrate the platforms' ability to moderate social media posts that risk undermining American democracy and fueling violence.” .

The justices will consult two key precedents to try to determine where to draw the constitutional line in the cases that will be argued Monday. Moody v. NetChoiceNo. 22-277, and NetChoice v. PaxtonNo. 22-555.

One of them, Pruneyard Shopping Center vs. Robins 1980, concerned a huge private shopping center in Campbell, California, whose 21 acres included 65 stores, 10 restaurants and a movie theater. It was open to the public but did not permit, as Justice William H. Rehnquist put it in his opinion to the court, “any publicly expressive activity, including the circulation of petitions, that is not directly related to its commercial purposes.”

That policy was challenged by high school students who opposed a U.N. resolution against Zionism and were prevented from handing out leaflets and asking for signatures for a petition.

Justice Rehnquist, who would be elevated to chief justice in 1986, wrote that the state constitutional provisions requiring the mall to allow people to engage in expressive activities on its property did not violate the center's rights under the First Amendment.

In the second case, Miami Herald v. ScrewThe Supreme Court in 1974 struck down a Florida law that would have given politicians a “right to respond” to newspaper articles critical of them.

The case was brought by Pat L. Tornillo, who was unhappy with the Miami Herald's colorful editorials opposing his candidacy for the Florida House of Representatives. The newspaper said Tornillo, a union leader, had participated in “political exploitation.”

Chief Justice Warren E. Burger, writing for a unanimous court to strike down the law, said the nation was in the midst of “vast changes.”

“In the last half century,” he wrote, “a communications revolution has seen the introduction of radio and television into our lives, the promise of a global community through the use of communications satellites and the spectrum of a nation 'wired'”.

But Chief Justice Burger concluded that “the vast accumulations of uncontrollable power in the modern media empire” did not allow the government to usurp the role of publishers in deciding what should be published.

“A responsible press is certainly a desirable goal,” he wrote, “but press responsibility is not stipulated in the Constitution and, like many other virtues, cannot be legislated.”


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