Censorship At Social Media Companies
5th Circuit Court of Appeals Ruled These Companies Don't Have 1st Amendment Right to Censor Users
This past Friday, the Fifth Circuit Court of Appeals upheld a Texas law prohibiting social media companies from engaging in point-of-view censorship, and reversed a lower court’s ruling.
My August 25th post anticipated this clash of Constitutional principles argued by the plaintiffs and defendants in this case.
From the Court’s opinon, the money paragraph:
In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech. The implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business.
The internet platforms erred in arguing that the Texas law violated their First Amendment freedom of speech rights because the Court correctly noted that the Texas law did not abridge the social media platform owner’s own speech. The law only abridged the social media’s right to censor other persons’ speech.
Instead the social media platforms were really making a freedom of association argument. They essentially argued for the free exercise of their right to remove users whose viewpoints they disagreed with. This would be a solid argument for cases of political activism and the need for viewpoint solidarity. However, the Social Media companies’ argument is far weaker in the context of a commercial enterprise.
The social media companies are making a more radical argument similar to the Lochner v New York decision that ruled that employers and employees should have right to make labor contracts free of government interference. That decision was widely reviled by later Progressive Constitutional jurists and professors because it limited the Progressive and New Deal agenda for increased government intervention in the economy. However, in a turn of the ideological tables, the Progressives are using Libertarian judicial arguments to defend the big business owners of Social Media companies. So much for intellectual honesty. Hypocrisy abounds!
The Common Carrier Fallacy
As I noted in my August 25 post, common carriers, like phone companies, charge their customers user fees. Social Media companies don’t charge user fees, and they rely upon advertisers to generate their revenue. Therefore, the Fifth Circuit Court of Appeals is likely on shaky ground when they use the common carrier analogy as the foundation of their argument. Without a subscription payment by a user, How can the Court claim that there is a commercial nexus between the user and the Social Media companies?
As I pointed out, the better legal argument to make is that Section 230 of the Communications Decent Act of 1996 gives these Social Media companies special exemptions from damages (trademark and copyright infringements, slander, libel, etc.) on the theory that they are acting as a neutral medium for other persons who produce the content, and who are thus liable for any torts. These exemptions are not available to newspapers or magazine.
Therefore, the Social Media companies’s censorship should be limited to unlawful activities, nudity, and profanity, and not to viewpoint discrimination. The only time that viewpoint censorship should be permitted is when the user affirmatively requests a filter for specific kinds of speech from the Social Media company. Otherwise, there is an equal protection violation of the the 14th amendment where social media companies, that curate their content like magazines and newspapers, aren’t subject to the same legal risks.
I also argued that because Social Media companies utilize the tracking of their users behavior to monetize this information for advertising revenue, that these Social Media companies should be compelled to offer a subscription option where their personal information could not be tracked and sold. Any Social Media company that did not wish to comply with these conditions would lose their Section 230 exemptions and operate like a newspaper or magazine.
Interstate Commerce Regulations
The Texas law is also likely to run afoul of the interstate commerce clause. If every state in the union could pass laws governing how social media companies operate, then this industry would be in chaos. Imagine if California and New York pass statutes exactly opposite of Texas. What happens if a company based in California censors the account of a Texas resident? And with users applying VPN (Virtual Private Network) technology that hides their location, these statutes become unenforceable. The interstate commerce clause in our Constitution is intended to be applied to circumstances like this. I believe that the Roberts Court won’t even engage the 1st Amendment issues in this case, and they will simply invalidate the Texas statute using the interstate commerce clause.
Hopefully, by the time this case is appealed to the Supreme Court, these arguments will be entered into the record, and spur Congress to adopt the model legislation I proposed in my August 25 post.
David Barulich