{"id":3728,"date":"2022-12-02T08:00:00","date_gmt":"2022-12-02T13:00:00","guid":{"rendered":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/?p=3728"},"modified":"2024-09-27T18:57:21","modified_gmt":"2024-09-27T18:57:21","slug":"inconsistent-scotus-conservatism-and-corporate-speech","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/inconsistent-scotus-conservatism-and-corporate-speech\/","title":{"rendered":"Inconsistent: SCOTUS, Conservatism, and Corporate Speech<\/strong>"},"content":{"rendered":"\n
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By: John Schengber, Vol. 21 Staff Writer<\/p>\n\n\n\n

In recent decisions from the circuit courts \u2014 the second-highest level of federal courts<\/a> behind the Supreme Court \u2014 judges disagree as to whether states can prohibit<\/a> social media companies from moderating content on their platforms. The Firth Circuit Court of Appeals evaluated a Texas law, and the Eleventh Circuit Court of Appeals evaluated a Florida law. Both state laws prohibit a platform like Facebook<\/a> from moderating its content based on the viewpoint of the content, such as by removing content it deems hate speech or misinformation. In evaluating the two state laws, the Fifth and Eleventh Circuit Courts came out differently on the issue, and an important disagreement between circuit courts typically tees up a Supreme Court showdown. At the Supreme Court, the case will test the Justices\u2019 commitment to protecting corporate speech.<\/p>\n\n\n\n

Background<\/strong><\/p>\n\n\n\n

Since the 1970s and 1980s, Supreme Court decisions such as Buckley v. Valeo<\/a>, First National Bank of Boston v. Bellotti<\/a>, and Citizens United v. FEC<\/a> have increasingly placed corporate speech on equal footing with other forms of protected expression. The thinking, according to the Courts that made those decisions, was that legislatures and courts cannot dampen corporate speech merely to protect the speech of others. If spending is speech<\/a>, according to Buckley<\/em>, and corporations are people<\/a>, according to Citizens United<\/em>, then spending by corporations towards political campaigns and other areas of public discourse is speech that the Government cannot restrict simply because the \u201cspeaker\u201d is a corporation. (Economists point to a connection<\/a> between these decisions favoring unrestrained corporate speech and subsequent Republican electoral victories).<\/p>\n\n\n\n

But now much of corporate power, and corporate speech, comes from Silicon Valley, where Facebook, Google, and Twitter roost, turning corporate power blue. Meanwhile, as social media platforms have become hotbeds of radicalization, misinformation, and hate speech, the internet giants face pressure to censor their users<\/a>, including conservative politicians like Donald Trump. Conservative legislatures and governors in Texas and Florida<\/a>, reacting to the perception that the Silicon Valley magnates are selectively censoring conservative speech<\/a>, enacted laws that prohibit social media companies from moderating their users\u2019 speech.<\/p>\n\n\n\n

The Statutes and the Circuit Split<\/strong><\/p>\n\n\n\n

Both the law in Florida, S.B. 7072<\/a>, and the law in Texas, H.B. 20<\/a>, seek to limit social media companies\u2019 ability to moderate platform users\u2019 speech or remove users from platforms based on their speech. The plaintiffs, led by NetChoice LLC, are a group of telecommunications trade associations<\/a> that represent the large social media companies. They filed preliminary injunctions against each statute in the appropriate courts\u2014the U.S. District Courts for the Northern District of Florida<\/a> and the Western District of Texas\u2014asking the courts to stop the laws before they go into effect on the grounds that the laws violate the platforms’ First Amendment free speech rights. The cases were then appealed to the Eleventh Circuit and the Fifth Circuit. <\/p>\n\n\n\n

In both cases, NetChoice made two important arguments. First, social media companies are private actors. Second, they are publishers who maintain editorial discretion. Because the First Amendment only applies to state actors<\/em>, not private actors, NetChoice argued that it is not a First Amendment violation of any sort when the companies choose to censor their platforms\u2019 users. Further, because the First Amendment prohibits governments from compelling editorial publishers\u2014like newspapers or internet sites\u2014to publish certain things, NetChoice argued that the statutes violate the First Amendment by compelling private actors to speak in certain ways when it forces them to support all users\u2019 content.<\/p>\n\n\n\n

Texas and Florida, meanwhile, argued that social media sites can be regulated consistent with the First Amendment because social media sites are either common carriers<\/a>, like utility companies or internet service providers, or public forums, like public parks or sidewalks. In either setting, the states argue, it violates the First Amendment for social media companies to moderate users\u2019 content, and, accordingly, it is within states\u2019 powers to pass laws prohibiting<\/em> such content moderation.<\/p>\n\n\n\n

The Eleventh Circuit found<\/a> that some, but not all, of the Florida law\u2019s provisions violate the First Amendment. <\/em>Importantly, the Court rejected Florida\u2019s arguments that the platforms were common carriers, and instead found that the First Amendment protects social media companies\u2019 right to moderate its own speech. The Fifth Circuit differed remarkably<\/a>, finding that social media companies are<\/em> common carriers and that the Texas law does not violate the First Amendment because it doesn\u2019t regulate speech, it protects other people’s speech.  Both cases await the Supreme Court\u2019s decision whether to take the controversy this term.<\/p>\n\n\n\n

Principles at Stake for The Supreme Court<\/strong><\/p>\n\n\n\n

The NetChoice cases, present the Supreme Court with the opportunity to reshape the First Amendment landscape to fit the modern era. Texas\u2019s and Florida\u2019s argument that social media companies are essentially common carriers and\/or public forums, if accepted by the Court, would expose the platforms to a deluge of regulatory oversight. Such regulation would likely have several effects<\/a>. First, it could turn the platforms into cesspools of hate speech and misinformation, because the oversight requested by the conservative states would actually prevent platforms from removing what they deem harmful. Second, the regulatory regime would give smaller platforms, like Parler, Gab, and Truth Social, greater opportunity to compete because they would be exempt from the regulations due to their smaller<\/a> user base. The combined result is a more fragmented cyberspace, where platforms and hosts have less control over the destiny of their own creation.<\/p>\n\n\n\n

But the underlying issue, besides the fate of the internet, is the Court\u2019s approach to corporate speech and power. In its campaign finance cases, the Court exclaimed that the Government cannot limit corporations\u2019 ability to speak just because corporations\u2019 massive capacity for speech\u2014measured in dollars\u2014might drown out others\u2019 ability to speak. Now, state governments seek to limit corporate speech social media platforms\u2019 editorial discretion) in order to uplift the speech of others (social media users who want to engage in disfavored speech). If the Court takes up the issue, it will be forced to reconcile the two approaches. Could this lead the Court to reconsidering its precedents that so elevated corporate speech? I doubt it. I fear, instead, that the Court will manage to justify regulations on corporate speech when those regulations involve social media companies moderating their platforms, while, on the other hand, continuing to strike down regulations on corporate speech when the regulations involve, say, limits on corporate spending towards political campaigns. In doing so, the Court will miss an opportunity to tamp down on corporate speech for the benefit of the public interest.<\/p>\n","protected":false},"excerpt":{"rendered":"

By: John Schengber, Vol. 21 Staff Writer In recent decisions from the circuit courts \u2014 the second-highest level of federal courts behind the Supreme Court \u2014 judges disagree as to whether states can prohibit social media companies from moderating content on their platforms. The Firth Circuit Court of Appeals evaluated a Texas law, and the …<\/a><\/p>\n","protected":false},"author":10,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":true,"template":"","format":"standard","meta":[],"categories":[396,10],"tags":[60,84,133,138,315,338],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/3728"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=3728"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/3728\/revisions"}],"predecessor-version":[{"id":5284,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/3728\/revisions\/5284"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=3728"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=3728"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=3728"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}