Free Speech on Social Media

“Not in their wildest dreams could anyone in the Founding generation have imagined Facebook, Twitter, YouTube, or Tik- Tok.”

Judge Kevin C. Newsom, U.S. Eleventh Circuit Court of Appeals [1]

The Biden administration has asked the Supreme Court to hear two cases on Florida and Texas laws preventing removal of social media posts. They were passed in response to conservative complaints that censorship by internet platforms violated the First Amendment freedom of speech. The laws’ supporters said the measures were needed to address “Silicon Valley censorship,” especially the banning of Trump after the January 6 attack on the Capitol. [2]

The laws were challenged by two trade groups, NetChoice and the Computer & Communications Industry Association, which said the First Amendment prohibits the government from restricting private speech. Federal appeals courts reached conflicting conclusions about the constitutionality of the two laws. [3]

The administration’s brief argued that “the platforms’ content-moderation activities are protected by the First Amendment.” U.S. Solicitor General Elizabeth B. Prelogar’s brief said:

“. . . given the torrent of content created on the platforms, one of their central functions is to make choices about which content will be displayed to which users, in which form and which order. The act of culling and curating the content that users see is inherently expressive, even if the speech that is collected is almost wholly provided by users.” [4]

Federal Law

The First Amendment and a specific U.S. Code apply.

First Amendment

The relevant clauses are “Congress shall make no law . . . abridging the freedom of speech, or of the press . . .” [5] This Amendment, like the rest of the Bill of Rights, applies to government and not private citizens. It prevents laws that limit free speech and press. The Supreme Court has held that it protects all speech except:

  1. Obscenity, material that the average person applying contemporary community standards would find appeals to ‘prurient interest’ when ‘taken as a whole,’ and lacks serious literary, artistic, political, or scientific value. [6]
  2. Defamation, a false statement that injures a third party’s reputation. [7]
  3. Fraud, misrepresentation of fact that causes injury. [8]
  4. Incitement, “speech that is intended, and likely, to cause imminent lawless action.” [9]
  5. “True” threats that a reasonable person would interpret as intent to do harm. [10]
  6. “Speech integral to criminal conduct,” such as child pornography being child abuse. [11]

The Supreme Court considers these exceptions to be “well-defined and narrowly limited,” and has refused to add others so far. This means that the First Amendment protects lies and conspiracy theories that are not covered by the exceptions above. And the meanings of the exceptions are as defined in a history of case law, not the dictionary. 

Section 230, 47 U.S.C. § 230

Section 230 is a Federal law that protects internet service providers from liability for content posted by users. Although not requiring platform moderation, it does permit “private blocking and screening of offensive material” that “the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” It was passed as part of the Communications Decency Act of 1996 to provide “family friendly” internet spaces where inappropriate but legal speech could be blocked. [12]

The Florida Law

The State of Florida enacted Senate Bill 7072 in 2021 in response to the “biased silencing” of “our freedom of speech as conservatives . . . by the ‘big tech’ oligarchs in Silicon Valley.” [13] The law describes platforms as “public utilities” that should be “treated similarly to common carriers.” Social-media platforms “have unfairly censored, shadow banned, deplatformed, and applied post-prioritization algorithms to Floridians,” and “the state has a substantial interest in protecting its residents from inconsistent and unfair actions” by the platforms. [14]

The law (1) asserted Floridians’ right to sue platforms for financial damages, contrary to Section 230; (2) required the Florida attorney general to sue violators under “Florida’s Unfair and Deceptive Trade Practices Act,” and had the Florida Election Commission impose fines for deplatforming political candidates. [15] The law originally had a theme-park exemption that was repealed after Disney executives made public comments critical of Florida’s “Don’t Say Gay” law. [16]

NetChoice and the Computer & Communications Industry Association, trade associations that represent internet and social-media companies like Facebook sued Florida to prevent enforcement, arguing that it violated their free speech. A district court issued an injunction against enforcement, and a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit upheld blocking Florida’s law. [17]

The Appeals Court opinion said:

“whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.” [Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 790 (2011)] . . .”the Free Speech Clause of the First Amendment constrains governmental actors and protects private actors.” [Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1926 (2019)]. Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it.

Social media platforms exercise editorial judgment that is inherently expressive. When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results or sanction breaches of their community standards, they engage in First Amendment-protected activity. [18]

The Texas Law

Texas House Bill No. 20 regulates large social media platforms that “function as common carriers, are affected with a public interest, are central public forums for public debate, and have enjoyed governmental support in the United States.” [19] It prohibits large social media platforms from removing, moderating, or labeling posts from users in Texas based on specific viewpoints. “This bill is one of the Republican-backed laws that are designed to prohibit censorship of political speech on social media.” [20]

A district court issued an injunction against enforcing the law, but a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed that order. NetChoice and CCIA petitioned the Supreme Court to reinstate the injunction, and the Supreme Court temporarily blocked the Texas law by a 5-to-4 vote. A Fifth Circuit panel then reversed the district court again, but suspended enforcement pending Supreme Court review. [21]

The Fifth Circuit opinion said the Texas law (HB 20) differs from the Florida law (S.B. 7072). But the Fifth Circuit also disagreed with the Eleventh on the First Amendment, editorial judgment, and common carriers:

To generalize just a bit, S.B. 7072 [the Florida law] prohibits all censorship of some speakers,” while HB 20 [the Texas law] prohibits some censorship of all speakers. Texas’s law permits non-viewpoint-based censorship and censorship of certain constitutionally unprotected expression regardless of who the speaker is. And HB 20 applies to all speakers equally, instead of singling out political candidates and journalists for favored treatment. These are of course highly relevant distinctions when deciding whether SB 7072 and HB 20 are impermissibly content- or speaker-based laws and whether they sufficiently tailored to satisfy heightened First Amendment scrutiny.

We part ways with the Eleventh Circuit, however, on three key issues. Unlike the Eleventh Circuit, we (1) do not think the Supreme Court has recognized “editorial discretion” as an independent category of First-Amendment-protected expression. And even if it had, we (2) disagree with the Eleventh Circuit’s conclusion that the Platforms’ censorship is akin to the “editorial judgment” that’s been mentioned in Supreme Court doctrine. Finally, we (3) disagree with the Eleventh Circuit’s conclusion that the common carrier doctrine does not support the constitutionality of imposing nondiscrimination obligations on the Platforms.

We reject the platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee. The platforms are not newspapers. Their censorship is not speech.” [22]

Steve Vladeck of University of Texas Law called this decision “practically and legally bonkers” and recommended a review by Mike Masnick. Ken White called it an “angrily incoherent First Amendment decision.” Alan Rozenshtein of Lawfare and University of Minnesota Law provided a detailed legal analysis and called it “an extreme example of First Amendment absolutism” that “deserves to be swiftly overruled.”

It seems to me that the 18th century printing press is the internet today, and moderation a close analogy to editorializing. In any event, conflicting rulings from two Federal appeals courts is a “circuit split” that probably guarantees a future Supreme Court review. [23]

1. NetChoice, LLC, et al. v. Attorney General, State of Florida, et al., No. 21-12355 (11th Cir. 2022)
2. Adam Liptak, “Biden Administration Urges Justices to Hear Cases on Social Media Laws,” New York Times, Aug. 14, 2023
3. Ibid.
4. Ibid.
5. The U.S. Bill of Rights, ratified December 15, 1791, National Archives
6. “obscenity,” Cornell Legal Information Institute, retrieved 7 Aug 23
7. “defamation,” Cornell Legal Information Institute, retrieved 7 Aug 23
8. “fraud,” Cornell Legal Information Institute, retrieved 7 Aug 23
9. Ken White, “The First Amendment Isn’t Absolute. Sure, But So What?” The Popehat Report, Dec 24, 2022
10. Ibid.
11. Ibid.
12. Mike Masnick, “Hello! You’ve Been Referred Here Because You’re Wrong About Section 230 of the Communications Decency Act,“ Techdirt, Jun 23, 2020
13. “Governor Ron DeSantis Signs Bill to Stop the Censorship of Floridians by Big Tech,” News Release, May 24, 2021
14. Florida Senate Bill 7072, “An act relating to social media platforms,” May 24, 2021
15. “Governor Ron DeSantis Signs Bill to Stop the Censorship of Floridians by Big Tech,” News Release, May 24, 2021
16. NetChoice, LLC, et al. v. Attorney General, State of Florida, et al., No. 21-12355 (11th Cir. 2022)
17. Ibid.
18. Ibid.
19. Texas House Bill No. 20, An ACT relating to censorship of or certain other interference with digital expression, May 16, 2022
20. “Texas House Bill 20: First Amendment And Web-Based Platforms,” Amini & Conant, LLP, January 30, 2023
21. Ibid.
22. NetChoice v. Paxton, No. 21-51178 (5th Cir. 2022)
23. “Texas House Bill 20: First Amendment And Web-Based Platforms,” Amini & Conant, LLP, January 30, 2023

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    Kevin E. Walsh

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