The Daily Signal - Justices Weigh Future of Free Speech on Social Media Platforms

Episode Date: February 27, 2024

Can states prohibit social media companies from censoring the speech of their platforms' users? That's a question now before the Supreme Court.  The justices heard oral arguments Monday in a pair of major First Amendment cases. The cases stem from laws passed in Texas and Florida in 2021 after a number of social media companies' deplatforming of then-President Donald Trump following the Jan. 6, 2021, Capitol riot. Following social media companies' banning of Trump and a number of other conservative voices, both Texas and Florida passed laws preventing social media platforms, such as YouTube and Facebook, from censoring users’ constitutionally protected speech.  But two trade associations challenged those laws on behalf of the social media companies.  The trade groups argue that social media companies' decisions about what speech they censor is an editorial choice protected by the First Amendment.  Are social media platforms required to carry everyone's views? Or like newspapers, do these Big Tech companies have a First Amendment right to choose what speech is and is not allowed on their platforms?  The justices are expected to issue their decision on the case in June.  Texas state Sen. Bryan Hughes, who sponsored the Texas law; Adam Candeub, a Michigan State University law professor; and Jack Fitzhenry, a legal fellow with The Heritage Foundation (of which the Daily Signal is the news outlet), join “The Daily Signal Podcast” to offer their analyses on the arguments before the high court on Monday and what the justices' ruling could mean for Americans.  Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Tuesday, February 27th. I'm Virginia Allen. The Supreme Court heard arguments on Monday for a major big tech and First Amendment case. The question before the Supreme Court is can states prevent social media companies from censoring the speech of platform users? We have a full house here today to explain the origins of the case offer insight into what we heard during arguments on Monday and explain what the outcome of the case means for social media platforms and for the American people. Looking for quick conservative policy solutions to current issues from America's outpost here in Washington, sign up for Heritage's weekly newsletter, The Agenda. You'll get top conservative research, a rundown of important events happening here at Heritage

that you can watch online and hot takes from our experts. sign up at heritage.org slash agenda or at the link in the show notes. So let's go ahead and dive right into the conversation today since we do have a lot of ground to cover. Joining us to discuss arguments and the implications of the case is Texas Senator Brian Hughes, Michigan State University Law Professor Adam Kandube, and Heritage Foundation Legal Fellow Jack Fix Henry. Thank you all so much for being here today. Thanks for having us. Well, this is going to be a fun conversation.

Senator, I want to start with you and ask you to explain a little bit of the background, if you would, of this case. The justices are considering a case that really originated both out of your state of Texas and Florida. So Texas and Florida passed laws in 2021 that aim to prevent social media companies from censoring speech that is protected under the First Amendment. Now, you led the way in Texas on this legislation. Why did you see a need for legislation like this? We were tired of having posts blocked for no apparent reason. It seemed to us the motivation was based on First Amendment, based on your view of religion or of health care or of politics. But it was hard to get an answer.

And so it came to head when Rep. Senator Scott Sanford, a state rep in the Dallas area, who's also a pastor, was doing a post about his church's Easter sunrise service. Not a controversial event in most quarters in America, certainly not in Dallas. And, of course, that post was offensive. There weren't allowed to boost that. He was able to contact someone at Facebook, and they said, well, yeah, the algorithm probably shouldn't have caught that. Sorry about that. Of course, the event's over at this point.

And we've had that experience before with a lot of us. Now, if you're a politician and your post is blocked, you might be able to find someone at Facebook to get an answer from. But what if you're a real American back home? You have no recourse. All you know is you were blocked. You were a shadow banned. You were punished. put in Facebook jail, as it's been called, and there's nothing you can do.

And you don't know what the rules are. You don't know how to appeal. There's no way to. And so they have so much power. This is the New Town Square. This is where folks go to hash it out, to have debates. And it's so important, so fundamental that we have open and robust debates with no one controlling it, no one being the gatekeepers or free speech.

So we had it happened to us so many times. It was happening to our constituents. We knew that we had to do something. So you all passed the law. that said, hey, to social media companies, you all are not allowed to censor our constituents. That's exactly right. It recognizes they are common carriers. They are providing that service, and they're not allowed to punish you because of your viewpoint.

Your cell phone provider can't cut you off because of where you go to church or don't go to church, nor can your utility company because of your politics, because they're common carriers. Now, of course, if we're talking about lewd, lascivious, excessively violent, that kind of, content must be dealt with, and that's specifically provided for in our bill. But when it's viewpoint discrimination, this law says they can't do that. They're common carriers, and the law says they've got to tell us what the rules are, right? How can folks order their conduct if they don't know what the rules are? So post on a website what your process is for what content goes up, what comes down, and give us an appeal process when we're blocked. And then finally, the Texas law says if a social media platform violates your free speech based on those protected speech areas, you have a lawsuit.

You can sue them for an injunction to get back online and they got to pay your attorney's fees. It's to put some teeth in this and give people a recourse because right now the social media platforms have absolutely all the power. In America, nobody gets to be the gatekeeper of free speech. That's not how we do it. Professor Kandub, I want to come to you next and pull on your legal skills here to talk about the challenge. So Florida also passed a very similar lot to what Senator Hughes just broke down that they did in Texas.

These laws were challenged. Why are social media companies challenging these laws? Why do they say they have protection under the First Amendment to censor speech on their platforms? Well, because they make a claim which the court was so much suspicious of that essentially every user post and every user-generated content on their web is somehow their speech. and they're quite hypocritical about it. Without digressing into the weeds, there's this section, section 230 of the Communications Decency Act, which gives the platform's immunity

for carrying the speech of others. So when they content moderate, when they discriminate against users, they all say, well, this is Section 230. It's speech of another. It's not our speech. And so they're not liable for it. They have no responsibility for anything on their platforms.

That's why, you know, they proliferate as they do with so much damaging content. However, in this case, the platform said, oh, no, no, no, no. This content that we said in other contexts, not only in Section 230, but last term in Josta, which we say is other people's speech, that's really our speech.

And we're somehow expressing a secret message that can detect when we block people, when we shadow ban people, when we prioritize according to unknown algorithms and hidden boosting methods. No one sees this moderation, but the platform is to claim that somehow it expresses an idea that is deserving of a First Amendment protection.

I think that's absurd. I think a lot of the justices found it absurd because this is not speech. It's conduct performed in other people's speech. And the court is a very high standard for what constitutes expressive conduct. What the courts are really here is essentially a get out of jail free card for every regulation that every other business faces. Through the First Amendment, I should say. Of course. We saw some disagreement from lower courts about thoughts on this as these challenges are moving forward. So that's where Supreme Court comes in. We're looking to them to give the final word on this. Mr. Fifth Henry, I want to turn to you and ask you for just kind of the big picture, who were the main players arguing before the justices today? And was there anything that struck you during arguments that the justices said?

Right. So just like we have a full house here today, the court had a full house in front of it. You had the solicitor generals for both of the states involved, so the Henry Whitaker for Florida and Texas. Who's Texas Solicitor General? Nielsen. Nielsen from Utah. Law professor. Yeah, a law professors. New guy on the job, on the job since November. So I apologize to Mr. Nielsen, who I only just met this week. You had the state solicitor generals. You also had former U.S. Solicitor General Paul Clement, arguing on behalf of Net Choice, so he argued in both cases. Also arguing in both cases is current U.S. Solicitor General

Elizabeth Preliger. You may be wondering why she's arguing. The U.S. is not a party formally, but they moved to intervene in the case because they believe the government has some interest in how this case is resolved. So she was there to present a sort of position unique to the federal government here, really supportive of either side, but much closer to the platforms to Net Choice than to the states in its content. In terms of what was most striking about the arguments, You had a tour through some of the conceptual merit issues that I think most animate interest in these cases, the core free speech questions, how much of what the platforms are doing to user content can qualify as expressive, you know, can qualify for First Amendment protection, a little bit of delving into this question of common carrier. How much latitude does it provide to states to regulate social media platforms or other kind of communications industry players? the overarching concern, I'm afraid, has to do with the posture of the litigation.

So we may not get the final word on these merits questions this time around. What Net Choice did in its haste to prevent these laws from taking effect is it brought what's called a pre-enforcement facial challenge. That means that before this law has ever applied to anybody, before a court ever has a chance to look at a particular application of it, Net Choice is saying that in all its applications, it's unconstitutional. All of them violate the First Amendment. That's a pretty broad claim, and it comes with a correspondingly heavy burden that NetChoice has to bear in litigation. Now, it got the 11th Circuit to sign on with respect to Florida's law. It failed to convince the Fifth Circuit with respect to Texas's law.

Across the ideological spectrum today, you had justices who were concerned that this might be unconstitutional in certain cases, but another is quite legitimate. There were hypotheticals raised about could Gmail, you know, communications, digital communications provider, block the email accounts of Rachel Maddow and Tucker Carlson. This is a prospect that Justice Alito raised. And Paul Clement, arguing for Net Choice and committed to a kind of maximalist position on what rights the platforms had, essentially said, yeah, that's possible. And that concerned not just Justice Alito, but some of his colleagues across the ideological spectrum who I think see problems with what Texas and Florida have done, but aren't convinced

that it's unconstitutional in every possible application. So what could happen, what's maybe most likely to happen now, is the court would dissolve the injunction, keeping these laws from taking effect, send the cases back to the lower courts to flesh out a record that the Supreme Court may later use in determining the ultimate constitutionality of these laws. So you think that the Supreme Court wants the lower courts to work out more of the details and like you said, flesh this out a little bit more so that they have more to go on when they are making. ultimately a final ruling. That's right. It's not a certainty that that's what the justices will do, but I can tell you that it was a common refrain to justices across the spectrum. I think with one exception, all of them asked questions that sounded in this concern of, couldn't this be constitutional in certain respects? Or what about this? Does it apply to this platform or not? And oftentimes advocates

on both sides were left saying, the record doesn't tell us. So we have to guess. So Net Choice is, of course, representing the social media companies here. Senator Hughes, was there any questions that really stuck out to you when the justices were questioning those representing the social media platforms or other moments that you think are worth noting? This question about the platforms engaging in their own speech kept coming up. And it was interesting. Paul Clement, who's obviously a brilliant advocate and shows up there a lot. And he's usually on the side that I'm for. It was incongruent today for me to be opposite him.

But they're taking the position that under Section 230, the professor can elucidate this. Anybody here can better than me, but they're taking the position under Section 230 that it's not our speech. It is these user's speech. And as long as we are putting their speech on through our platform, then we're not liable because we're not the publisher.

So it's not our speech. But today they say, oh, but for First Amendment purposes, yeah, that's all our speech. Even though it's what the users are saying, when we decide what to block, where to put it, what order to put it in, that becomes our speech. That's our creative, it's our creative work. And so they're clearly, you know, we always have to argue. We often argue in the alternative, and maybe our positions are always consistent.

But there they are taking to starkly different positions. And it was, the justice is all caught on to that. Yeah. Professor Kandu, the justices often have comments that are quite striking that will stand out above the rest or kind of rise to the surface that everyone in the days after finds themselves talking about any of those moments out of arguments on Monday? Well, I think Senator Hughes got the one that I noted, which was when Justice Alito said, well, you know, what essentially net choice is arguing for is the power to cut off the Gmail or not deliver the emails or direct messages of Tucker Carlson or Rachel Maddow.

And I think that's stuck in the craw of a lot of the justices. I also think the questions from Justice Katanji Brown were very good. And I think that, you know, she realized, and trying to put this in a bigger context, that, you know, to some degree, these platforms play a role in our public square and in public, in democratic discussion. And that, you know, this is,

you can't just consider this in isolation in the First Amendment rights of the platforms. This actually extends further. And then I guess finally, the comment from Justice Thomas, which was looking ahead to Murthy, which they're going to look at next, I think it's next month. The experts are in March, I don't know, but very shortly. And of course, Murthy is the Twitter Files case where platforms colluded with government

in order to censor certain individuals. And Thomas was very concerned about this and sort of signaling perhaps that the First Amendment doesn't really apply to these platforms when they're working hand and glove with the government to essentially silence citizens. Now, Professor, we heard from Mr. Fitzhenry that he thinks that there's a possibility that the justices will send this back down to lower courts to kind of look at and flesh out more. Do you think that that's possibly? Or what do you think is going to be the next step? And what would a ruling either way mean for the American people and for social media platforms?

Right. I think he's absolutely right. I thought the analysis was spot on. I counted four and a half votes. So I full for remand. Who's the half? Well, I mean, and I'm not a court watch. I have no, you know, reputation in this.

I mean, I'm going to be wrong. You know, your viewers should know that. But, you know, Thomas Alito and Gorsuch were clearly against. Tony Barrett maybe, Kagan maybe, and Katanji Brown maybe. So, you know, 0.5 for each of them, that's 4.5. I think, interestingly, and it does speak to it, you know, we always talk about the, you know, ideological shifts in the Republican Party, I think the least enthusiastic for Texas' side were justices, Kavanaugh, and Roberts. I think that they are very much still in the sort of

1980s, 1990s, you know, mode, which is like, oh, the First Amendment's great because it helps protect corporate speech and that they are very, you know, expansive in their view of what constitutes speech. So if it gets sent down, as it has been predicted, I think, you know, very, very sensibly, we're very likely to see an interesting ideological constellation. Yeah, that's always fascinating when that happens. Senator Hughes, what is at stake here at the end of the day for the American people? We think about free speech, and everybody here knows how important that is. We know it's a God-given right, guaranteed by the Constitution.

But I think we also realize it has practical benefits, right? If I'm wrong, I want to know it. Let's have a debate. Let's hash it out. Say what you think. Say what you think. and the marketplace of ideas will get us to the truth. We need that, and when that process isn't there, we get bad results, bad decisions.

I don't mean just Supreme Court. I mean society. I mean culture. So if these platforms, which have such a stranglehold, such a stranglehold on speech, if they get to keep doing that, we have real concerns. And also, if it does get to a point where then you've got to start your conservative group and I've got to start this libertarian group, do we really want to have to have. this splintered internet where nobody talks to each other except we just talk to people

that are you with us and have our own echo chambers. If we don't come together and hash it out as a culture, as a society, we get real problems. And I believe it is in June. Correct me if I'm wrong that we're expecting a ruling in this case? I believe that's right. Okay, great. Any final thoughts before I let you all go? We've really appreciated the conversation. I thought it was one of the most interesting arguments I've heard in the last three or four years. So that's for whatever that means. Yeah, well, that's noteworthy. I appreciate you all.

Thank you so much for your time today. This has been a delight. Nice way. Thank you. Well, with that, that's going to do it for today's episode. Thanks to everyone for joining us here on the Daily Signal podcast. If you haven't had the chance, be sure to check out our evening show right here in this podcast feed where we bring you the top news of the day. Also, make sure to subscribe to the Daily Signal podcast wherever you like to listen and help us reach.

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