This story was originally published by Real Clear Wire
By KS Bruce
Real clear wire
Plaintiff's brief in a major free speech case in the Supreme Court Netchoice v. Paxton It has now been uploaded. If prudence or fairness takes hold, the huge social media sites will lose their appeal and will be unable to prevent the general public from having full access to news and opinions in future election seasons.
In the Paxton In this case, the 5th U.S. Circuit Court of Appeals upheld a Texas law that would prevent the largest social media sites like X, YouTube, and Facebook from censoring messages that would be lawful and acceptable in a regular public forum. The law essentially requires social media to allow access to all political messages and viewpoints in the same way that a telephone company must transmit all messages and viewpoints.
Netchoice, the trade association for the sites, has taken to the Supreme Court to overturn the Texas law and restore absolute censorship power to private social media owners. Texas will file its own response in January 2024 and the court will decide the case shortly after.
There is important historical context to Texas law. Prior to the 2020 presidential election, major sites, such as Twitter (now known as “X”), actively censored a New York Post scoop about Hunter Biden’s scandalous laptop. The sites also impeded a significant amount of public policy discussion about the coronavirus (COVID) and blocked current and future communications by President Trump. These actions may have had a material impact on the upcoming elections.
Additionally, even as social media sites have become more aggressive in their use of censorship, they have also become increasingly dominant as a source of news and political messages in our society.
As Justice Anthony Kennedy wrote in the case Buckingham v. North Carolina“While in the past there may have been difficulty identifying the most important places (in a spatial sense) for exchanging views, today the answer is clear. It is cyberspace – the “vast democratic forums of the Internet” in general, and social media in particular. Seven out of ten American adults use at least one online social networking service… Facebook has 1.79 billion active users. This is about three times the population of North America.
Kennedy wrote Buckingham Public opinion in 2017, and media sites have become much larger and more important in political debate since then. Facebook, for example, now has nearly 3 billion monthly active users, and all social media now has about 4.9 billion users worldwide. In today's world, being banned from social media means being denied full and fair participation in political discourse and debate.
In the opening of their legal memorandum, the social media sites claim categorically that “there is no American tradition of compelling private actors to publish views against their will.” This claim is clearly false.
There is a clear American tradition of requiring private parties to allow the full and fair dissemination of all political opinions in at least two contexts. First, for “public corporations” such as telephone companies that transmit messages to the public at large. ii l Marsh v. AlabamaStylized private spaces, such as corporate cities, dominate public discourse to the point that they have assumed the functional equivalent of the “public square” itself.
The Fifth Circuit's reasoned opinion upholding the Texas law tied its decision to this reasoning. The justices explained how the original privately owned telegraph companies were eventually regulated as common carriers to prevent them from refusing to carry news favorable to labor unions or their other political and economic opponents.
The plaintiff's brief on behalf of the social media sites gives the “common carrier” and “public square” points short shrift. In their 54-page brief, prosecutors devote just two pages to the common carrier issue and just one paragraph to the “public square” question.
In seeking to avoid common carrier status, the plaintiffs assert that “the covered websites…are not common carriers. They do not hold themselves out as providing neutral, indiscriminate access to their platform without any editorial filtering.”
But that's disingenuous, because they actually do. The simple truth is that no company can ever gain billions of users unless They provided, in essence, neutral and random access. Joining Facebook or X is not like joining the Harvard Club. It's not like getting an opinion piece accepted by the editorial page of the New York Times.
If you look at subscription apps on major sites today and try to log in, the underlying message is “simple and easy.” The user enters his email and is then free to post; The sites are open to the public at random just like signing up for phone service and making a call. Aunt Millie can then post endless photos or comments without any editorial oversight whatsoever. In reality, each speaker is herself Benjamin Franklin – her newspaper publisher, in her own voice – and social media sites in the normal course are merely a passive transmitter to enable billions and billions of other people's messages to be sent – just like a telephone company, with no editorial opinions whatsoever.
The existence of editorial rules does not prevent an organization from being a common carrier. There are editorial rules that prevent letters from being sent even in public mail or via privately owned common carrier telephone companies. For example, child pornography is prohibited.
Finally, abuse of a common carrier's obligations does not absolve a bad actor from being a common carrier and having those obligations. Imagine if a railway company said: “We are not public carriers serving the entire public because we have a policy of excluding blacks.” In this case, exclusion constitutes abuse. Or consider if, at the height of its monopoly, Bell Telephone Company had said, “We're not a common carrier because we have an editorial policy, too. We don't let Democrats make phone calls during election season.”
The plaintiff presents weaker – or almost no – arguments against Marsh v. AlabamaPublic space requirements. In one paragraph on this issue, they cite Forbes The case in which public television stations were not required to include every self-declared political candidate in a political debate. But Justice Kennedy and the Supreme Court reached this conclusion, in part because forced inclusion would have created such a “cacophony” that it might make such discussions impractical and thus actually have the effect of limiting freedom of expression. Moreover, the court required public television to be “viewpoint neutral,” which is the exact goal of the Texas law being challenged.
Plaintiffs also cite prunyard Cases, which held that malls are not required to host free speech and protests like a “public square.” This is partly because protests could disrupt retail operations located in the heart of the mall. However, as a site of messaging, speech is at the core of social media, and social media sites are incredibly more important than any mall in the country's political discourse and debate.
Ultimately, regulating social media as a common carrier or “public square” will be a balancing test. This will be a measure of whether these sites have evolved to become so global, so open to the public, so central to political discourse and fair elections, that their private owners should give up some freedom to block others' expression at will.
As Justice Hugo Black wrote Marshes About the company city:
Ownership does not always mean absolute control. The more an owner opens his property, to his advantage, for use by the public at large, the more his rights become limited by the legal and constitutional rights of those who use it. Thus, the owners of privately owned bridges, ferries, turnpikes, and railways may not operate them as freely as a farmer does on his farm… When we balance the constitutional rights of property owners with the rights of the people to enjoy freedom of the press and of religion, as we must here, we remain mindful For the fact that the latter occupies a favorable position.
It is one thing to uphold the right of sites to limit unwanted advertising (as the courts have previously and correctly done). It is quite another to allow these same sites that have grown bigger and bigger, becoming more and more dominant, and becoming more and more important in political discourse, to block the most important political news and opinion debates every election season.
In the sovereign opinion of the people of Texas, the point of equilibrium has been crossed. Whether it's Biden's laptop news; Covid policy discussions; Imposing prior restrictions on the speech of specific political figures – all that speech that was clearly legal in Central Park or any other public forum, voters want to hear all political viewpoints impartially. Just as you would require privately owned telephone companies to carry all political viewpoints equally or require privately owned trains to carry passengers of all political viewpoints equally. Texas state law leaves full rights to sites to block any violent or illegal speech, and does not seek financial damages, only to improve access. The law must be adhered to.
More generally, social media regulation should be completely reformed (and Federal Section 230, which protects sites from liability for the messages they carry) should be as follows:
Social media should be considered “two speeds” with different rules for each speed.
The first speed is passive transfer, where the site only allows a user to post a post and allows readers to access that post if they specifically choose to; That is, without amplifying the post or putting it in the feeds of people who never searched for it. This passive hosting speed is no different than being the director of Central Park; Speakers can discuss any legal form of speech among themselves, and the moderator bears no responsibility or liability for the message.
A common-sense policy would be: “If it can be said in Central Park or any other public square, it can be said on our website, and readers who want to hear the speaker can search specifically for it.” Advertisers can choose to stay as far away from unregulated “free speech zones” as they want. True illegality can be banned and reported to the authorities like any other crime.
The second speed is active amplification, where the site takes a message and decides to rebroadcast or promote it itself in the feeds of those who never requested it. Here, the signer makes an editorial decision, and here, it must have all the protections and obligations of other speakers. For example, if a site maliciously takes a well-known libel and sends it to a billion listeners, it is liable for that action. But by the same token, under the First Amendment, the government cannot prevent a website from amplifying or republishing messages it chooses.
Testing the “common bus/common square” balance, recognizing the two speeds, would bring reason and logic to social media regulation in the future.
This article was originally published by RealClearPolitics and made available via RealClearWire.
