Monthly Archives: July 2024

The First Amendment was written in the 18th century with the noble and vitally important goal of ensuring robust political debate and a free press. For much of American history, First Amendment cases involving speech typically concerned political dissenters, religious outcasts, intrepid journalists and others whose ability to express their views was threatened by a powerful and sometimes overbearing state. The First Amendment was a tool that helped the underdog.

But sometime in this century the judiciary lost the plot. Judges have transmuted a constitutional provision meant to protect unpopular opinion into an all-purpose tool of legislative nullification that now mostly protects corporate interests. Nearly any law that has to do with the movement of information can be attacked in the name of the First Amendment.

Mondays Supreme Court decision in the two NetChoice cases greatly adds to the problem. The cases concern two state laws, one in Florida and one in Texas, that limit the ability of social media platforms to remove or moderate content. (Both laws were enacted in response to the perceived censorship of political conservatives.) While the Supreme Court remanded both cases to lower courts for further factual development, the court nonetheless went out of its way to state that the millions of algorithmic decisions made every day by social media platforms are protected by the First Amendment. It did so by blithely assuming that those algorithmic decisions are equivalent to the expressive decisions made by human editors at newspapers.

Even if one has concerns about the wisdom and questionable constitutionality of the Florida and Texas laws (as I do), the breadth of the courts reasoning should serve as a wake-up call. The judiciary needs to realize that the First Amendment is spinning out of control. It is beginning to threaten many of the essential jobs of the state, such as protecting national security and the safety and privacy of its citizens.

How did we get here? The reach of the First Amendment started to expand in the 1960s and 70s, when the Supreme Court issued a series of rulings that held that the First Amendment concerned not just political and religious speech but also other forms of expression (such as sexual content) and commercial communication (such as advertisements). These initial changes to the scope of the First Amendment were reasonable.

Over the past decade or two, however, liberal as well as conservative judges and justices have extended the First Amendment to protect nearly anything that can be called speech, regardless of its value or whether the speaker is a human or a corporation. It has come to protect corporate donations to political campaigns (Citizens United v. Federal Election Commission in 2010), the buying and tracking of data (Sorrell v. IMS Health in 2011), even outright lies (United States v. Alvarez in 2012). As a result, it has become harder for the government to protect its citizens.

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Opinion | The First Amendment Is Out of Control - The New York Times

Those of us who defend freedom of speech have unfortunately become used to hysterical headlines from the New York Times decrying the problem of the First Amendment.

Some of these headlines rely on straw man arguments to make their case, such as Free Speech Is Killing Us by Andrew Marantz in 2019. And who could forget Ulrich Baers 2017 article, What Snowflakes Get Right About Free Speech, which argued that people who agree with him should have more control over speech on campus? (Perhaps the least surprising position a university administrator has ever taken.) Or Lisa Feldman Barretts 2017 article, When Is Speech Violence?, which argues that speech can become violence when its stressful? If thats the case, then whats the First Amendment for?

Professor Tim Wus piece this week, The First Amendment Is Out of Control, was in this troubling tradition of free-speech catastrophising. As he notes at the beginning of the article, [n]early any law that has to do with the movement of information can be attacked in the name of the First Amendment. Well, sure. Fear of government power over the free flow of information was a big part of the reason why Congress shall make no law.

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The New York Times is wrong to attack the First Amendment - UnHerd

As the Moody v. NetChoice majority noted, the parties focused on Facebook's and YouTube's main feeds. The majority similarly focused on those main feeds in its extensive discussion of First Amendment principles, and, as co-blogger Ilya notes, it left little doubt about the unconstitutionality of the Texas and Florida statutes as applied to them. NetChoice didn't invalidate the laws on their face because of uncertainty about how the statutes apply to other services that were barely discussed (if at all) in the briefing below.

The article that co-blogger Eugene links to in his 12:19pm post today made probably the strongest argument in favor of the Texas and Florida laws at issue in NetChoice (and both states' lawyers cited Eugene's article in their oral arguments): that platforms can be treated like common carriers such that the regulation of the hosting of users does not implicate the First Amendment. The Alito opinion (concurring in the decision to remand but rejecting the majority's application of the First Amendment to the statutes as issue) largely agreed with Eugene's reasoning, but the majority did not.

Eugene says that "the majority did not decide whether the First Amendment extends to platforms' many other functionssuch as platforms' decisions whether to 'deplatform' users in a way that keeps readers from seeing the user's posts even when they deliberately seek out those posts," and I think that's correct for platforms other than the curated ones like Facebook's and YouTube's main feeds. I could easily imagine that the Court might find that some platform like Gmail cannot deplatform anyone based on their viewpoint, on the theory that Gmail does not engage in expression for First Amendment purposes. But Texas and Florida did not enact these statutes to quash Gmail's exclusion of users based on their viewpoint.

Is there any argument that under NetChoice regulating the exclusion (i.e., deplatforming) of users from the kinds of main feeds that the majority focused on does not implicate the First Amendment? I don't think so. The passages that Ilya quotes (and many other passages like it in the opinion) are very clear about the application of the First Amendment to these platforms. Beyond that, the logic of applying the First Amendment to the exclusion of messages (which the majority clearly does) also applies to the exclusion of users. A platform can exclude pro-KKK messages as part of its own communication that it abhors those messages. Similarly, excluding the KKK as a group, or the Grand Wizard of the KKK as a person, such that their posts cannot be seen by other users, would communicate that it wants nothing to do with the KKK. As the majority stated,

Suppose, for example, that the newspaper in Tornillo had granted a right of reply to all but one candidate. It would have made no difference; the Florida [right-of-reply] statute still could not have altered the paper's policy.

As the majority noted, the platforms rely on algorithms to implement their exclusion standards. A decision to implement an algorithm excluding all messages relating to the KKK (or the Kentucky Derby) would be covered by the First Amendment. And if one of the ways they chose to implement that exclusion was to exclude all messages from the Grand Wizard of the KKK, or the Kentucky Derby organization, they are still making an editorial decision that constitutes speech for First Amendment purposes. We might object that their decision excludes more speech than we would like (what's wrong with the Kentucky Derby?), just as we might object to the decisions made by the parade organizers in Hurley or the newspaper in Tornillo. But that doesn't change the fact that they are communicating by doing so.

Anyway, I'm guessing Eugene and I will discuss this at the upcoming online symposium on these cases. See below to sign up for what passes for fireworks among law professors.

Link:
The Supreme Court's Reasoning Prohibits the Deplatforming that the Parties Care About - Reason

If you spent Monday morning following each of the cases handed down by the Supreme Court, youre probably experiencing a bit of whiplash.

The biggest news out of the Court on Monday, of course, is a sweeping decision holding that former President Donald Trump was effectively allowed to do crimes while he was in office. Indeed, under the six Republican justices decision in Trump v. United States, it is very likely that a sitting president can order the military to assassinate his political rivals without facing any criminal consequences for doing so.

Just a few minutes before the Supreme Court handed down its Trump decision, however, it also handed down another case reaffirming that the First Amendment does not permit Republican-led legislatures to seize control of what content is published by media companies. That decision, in Moody v. Netchoice, was 6-3, with three Republican justices who also held that the leader of the Republican Party was allowed to commit many crimes while he was in office joining Justice Elena Kagans majority opinion.

So, on the same day that the Supreme Court appears to have established that a sitting president can commit the most horrible crimes imaginable against someone who dares to speak out against him, the same Court with three justices joining both decisions holds that the First Amendment still imposes some limits on the governments ability to control what content appears online.

Chief Justice John Roberts and Justice Brett Kavanaugh joined both decisions in full. Justice Amy Coney Barrett joined the Netchoice opinion in full, plus nearly all of the Trump decision.

Its impossible to comprehend the value system that would lead a justice to join both decisions, but nevertheless here we are. That said, the Courts decision in Netchoice is a victory for free speech, even if it comes the same day as one of the most chilling decisions in the Courts history.

Netchoice concerns two state laws, one from Florida and one from Texas, which seek to control what content must be published by major social media platforms such as Facebook, Twitter, or YouTube. Both laws were enacted by Republican legislatures, and signed by Republican governors, for the very purpose of forcing these platforms to publish right-leaning content that they would prefer not to publish.

As Texas Gov. Greg Abbott said before signing his states law, it was enacted to stop an allegedly dangerous movement by social media companies to silence conservative viewpoints and ideas.

The two laws, and especially the Texas law, are extraordinarily broad. Texass, for example, prohibits major social media companies from moderating content based on the viewpoint of the user or another person or on the viewpoint represented in the users expression or another persons expression.

Thats such a sweeping restriction on content moderation that it would forbid companies like YouTube or Twitter from removing content that is abusive, that promotes violence, or that seeks to overthrow the United States government. Indeed, Kagans opinion includes a bullet-pointed list of eight subject matters that the Texas law would not permit the platforms to moderate, including posts that support Nazi ideology or that encourage teenage suicide and self-injury.

In any event, Kagan makes clear that this sort of government takeover of social media moderation is not allowed, and she repeatedly rebukes the far-right US Court of Appeals for the Fifth Circuit, which upheld the Texas law.

As Kagan writes, the First Amendment does not permit the government to force platforms to carry and promote user speech that they would rather discard or downplay. She also cites several previous Supreme Court decisions that support this proposition, including its seminal decision in Miami Herald Publishing Co. v. Tornillo (1974), which held that a newspaper has the right to final control over the choice of material to go into it.

Nothing in Kagans opinion breaks new legal ground it is very well-established that the government cannot seize editorial control over the media, for reasons that should be obvious to anyone who cares the least bit about freedom of speech and of the press. But the Courts reaffirmation of this ordinary and once uncontested legal principle is still jarring on the same day that the Court handed down a blueprint for a Trump dictatorship in its presidential immunity case.

Its also worth noting that Kagans decision is technically a victory for Texas and Florida, although on such narrow grounds that this victory is unlikely to matter.

The specific holding of the Netchoice opinion turns on a distinction between a facial challenge to a state law, and a more limited as-applied challenge.

A facial challenge, which is what the social media platforms brought against Texas and Floridas unconstitutional laws, alleges that the law is unconstitutional in all of its applications and must be effectively removed from the books in its entirety. That contrasts with an as-applied challenge, which merely alleges that a law is unconstitutional when it is enforced against a particular plaintiff in a particular context.

Facial challenges, however, are notoriously difficult to win. Ordinarily, as Kagan writes, a plaintiff must show that no set of circumstances exists under which the [law] would be valid, though it is somewhat easier to win such a case in the First Amendment context.

While Kagans Netchoice opinion lays out why the Texas and Florida laws are unconstitutional as applied to social media companies core product a curated list of content authored by social media users both laws are so broadly drafted that they also may apply to less core features at websites like Facebook or Twitter, such as direct messaging or events management.

Kagan faults the lower courts for failing to separately evaluate whether the laws can constitutionally be applied to these non-core features, and sends the case back down to those lower courts to do that work. That said, the bulk of her opinion is quite clear that the laws cannot constitutionally be applied to core features like Facebooks Newsfeed or YouTubes homepage.

So, on the same day that the Supreme Court holds presidents above the law, it also appears to rule that lesser public officials still must comply with the First Amendment.

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The Supreme Court also handed down a hugely important First Amendment case today - Vox.com

The Supreme Court today correctly found that social media platforms, like newspapers, bookstores, and art galleries before them, have First Amendment rights to curate and edit the speech of others they deliver to their users, and the government has a very limited role in dictating what social media platforms must and must not publish. Although users remain understandably frustrated with how the large platforms moderate user speech, the best deal for users is when platforms make these decisions instead of the government.

As we explained in our amicus brief, users are far better off when publishers make editorial decisions free from government mandates. Although the court did not reach a final determination about the Texas and Florida laws, it confirmed that their core provisions are inconsistent with the First Amendment when they force social media sites to publish user posts that are, at best, irrelevant, and, at worst, false, abusive, or harassing. The governments favored speakers would be granted special access to the platforms, and the governments disfavored speakers silenced.

We filed our first brief advocating this position in 2018 and are pleased to see that the Supreme Court has finally agreed.

Notably, the court emphasizes another point EFF has consistently made: that the First Amendment right to edit and curate user content does not immunize social media platforms and tech companies more broadly from other forms of regulation not related to editorial policy. As the court wrote: Many possible interests relating to social media can meet that test; nothing said here puts regulation of NetChoices members off-limits as to a whole array of subjects. The court specifically calls out competition law as one avenue to address problems related to market dominance and lack of user choice. Although not mentioned in the courts opinion, consumer privacy laws are another available regulatory tool.

We will continue to urge platforms large and small to adopt the Santa Clara Principles as a human rights framework for content moderation. Further, we will continue to advocate for strong consumer data privacy laws to regulate social media companies invasive practices, as well as more robust competition laws that could end the major platforms dominance.

EFF has been urging courts to adopt this position for almost six years. We filed our first amicus brief in November 2018:https://www.eff.org/document/prager-university-v-google-eff-amicus-brief

EFFs must-carry laws issue page: https://www.eff.org/cases/netchoice-must-carry-litigation

Press release for our SCOTUS amicus brief: https://www.eff.org/press/releases/landmark-battle-over-free-speech-eff-urges-supreme-court-strike-down-texas-and

Direct link to our brief: https://www.eff.org/document/eff-brief-moodyvnetchoice

Read more here:
Victory! Supreme Court Rules Platforms Have First Amendment Right to Decide What Speech to Carry, Free of State ... - EFF