In December, federal district court Judge Robert Pitman ruled against HB 20, Texas’ sweeping new social media law that bars social media firms from engaging in almost any moderation of the content that can appear on their sites. Not only are they forbidden to completely exclude content they disapprove of; They are also not allowed to treat it differently on the site (such as by flagging it as possibly unreliable “misinformation” or reducing its prominence relative to other speech on the same platform).
Last week, the US Court of Appeals for the Fifth Circuit issued a 2-1 ruling imposing a stay on the injunction against enforcement of the law issued by the trial court. The Fifth Circuit ruling is purely procedural, and is not accompanied by any opinion explaining the court’s reasoning. So it’s hard to say whether the stay is based on purely technical procedural considerations, or signals that the majority believes the law is actually constitutional.
On Friday, the tech firms challenging the law asked the Supreme Court to lift the Fifth Circuit’s stay, in a brief drafted by a virtual Who’s who of prominent conservative appellate lawyers, including “super-lawyer” Paul Clement (former Bush administration Solicitor General) , and former Texas Solicitor General Scott Keller.
I will not try to assess the purely procedural issues involved in the fight over the stay. But I completely agree with the brief’s discussion of the substantive free speech question. HB 20 is blatantly unconstitutional because it compels speech, forbids the exercise of editorial discretion by social media firms, and is meant to target firms the Texas state government believes are hostile to “conservative” speech specifically.
HB 20 is an extreme version of proposals to treat social media firms as “common carriers” who have a legal duty to accept all or virtually all would-be customers. I criticized such proposals in detail here. Most of the points I make are relevant to the present case:
Let’s start with first principles. Eugene Volokh asks “Whose rules should govern how Americans speak with other Americans?”…..
Th[e] answer is that each American should be able to decide for himself, with extremely rare exceptions. But each person should also be able to decide what kinds of speech are permitted on their property. And that applies to media corporations no less than individuals. Thus, I should be able to advocate virtually any viewpoint I want. But Fox News and the New York Times Should be equally free to refuse to broadcast or publish my views.
Both the right to free expression and the right to refuse a platform to speech you disapprove of are vital elements of freedom of speech. If Fox were forced to broadcast left-wing views they object to and the Times had to give space to right-wing ones its editors would prefer to avoid, it would be an obvious violation of their rights. Moreover, in the long run, such policies would actually reduce the quantity and quality of expression overall, as people would be less likely to establish TV stations and newspapers in the first place, if the cost of doing so was being forced to give a platform to your adversaries’ views….
Thus, there should be a very strong presumption against forcing people to provide platforms for views they object to. Can proposals for common carrier regulation of social media overcome that objection? The answer should be a firm “no.”
The standard rationale for common carrier regulation is that the firms in question have some kind of monopoly power….
The reality is very much otherwise. Recent survey data compiled by the Pew Research Foundation finds that many more Americans get news by means other than social media than use the latter. For example, 68% of Americans indicated they regularly get news from media websites and apps, 68% from television, and only 53% from social media sites. Among the overwhelming majority (about 96% of the total sample) who use more than one type of media to get news, 35% preferred TV, 26% preferred news websites and apps, and only 11% said they preferred social media. The same study also found that, on average, Americans trust news from social media sources less than that from television and news websites.
What is true of news is also true of opinion and commentary about political and social issues in the news…..
To the extent we are specifically concerned with access for conservative viewpoints, there are large right of center players in both TV media and online news and opinion. These include such major outlets as Fox News, the Wall Street Journal editorial page, the Washington Timesthe New York Postand others.
In sum, social media sites have nothing approaching a monopoly over the market for political information generally, or even over its distribution online.
One measure of Big Tech social media’s inability to control political discourse is their utter failure to prevent the rise of widespread attacks on Big Tech itself! Real worthy monopolists of the name should be able to at least suppress speech that directly threatens their own interests.
Moreover, as I explained in a January  op ed in USA Today (itself one of the many alternatives to social media!), the big social media sites don’t even command a true monopoly over social media, narrowly defined. Rival sites with different (and often much looser) moderation rules can and do compete with them…. If they aren’t as popular as Facebook and Twitter, it’s not because of lack of competition, but because fewer consumers like them. Facebook and Twitter themselves challenged previous, supposedly dominant incumbents. If they annoy enough consumers, or if someone develops a more appealing competing platform, today’s supposedly unassailable “giants” will suffer the same fate…..
Other rationales for imposing common carrier rules on social media firms are even weaker than the monopoly theory….. [this part of my piece critiques analogies between social media and phone lines and mail delivery services].
The potential imminent takeover of Twitter by Elon Musk – who promises to greatly reduce content moderation – is a further sign that the market is fully capable of generating competition for platforms with restrictive moderation of policies.
I also explained why, if courts accept the HB 20 or “common carrier” approach to regulating social media, it would set a dangerous precedent for government control over other media:
In addition to banning content moderation rules that many consumers like, common carrier restrictions also create serious slippery slope risks. If the monopoly rationale for imposing common carrier rules on social media platforms is accepted, it could just as easily justify the imposition of similar requirements on many types of traditional media.
Even if Twitter and Facebook don’t actually monopolize the market for political information, it’s certainly true they reach various potential audiences that are difficult or impossible to reach in other ways. But, if that justifies forcing them to abjure restrictions on content, the same theory would rationalize imposing the same requirements on other types of media. Fox News, the New York Timesthe Wall Street Journal, and a variety of other major broadcast and print media outlets also reach large audiences that can’t always be easily reached in other ways. By that rationale, they too can be forced to be common carriers!
Perhaps the problem is not that social media giants monopolize any audience in some economic sense, but that they have too much influence over political discourse relative to some egalitarian baseline. Why should Mark Zuckerberg’s views have any more clout than those of the average American? But we can make exactly the same argument for the owners and editors of Fox News, the New York Times, and any other outlet with a large audience. They too have vastly more influence over public discourse than the average American does. And it’s not clear that they are any more worthy of their influence than Zuckerberg is.
Giving government a free hand to impose common carrier restrictions on any website or media outlet that “monopolizes” a particular audience or otherwise has “too much” influence is a power that can and will be abused. Call it “common carrier creep!”
The party in power will have obvious incentives to use it to neuter media that oppose them. Even if conservatives are comfortable with giving such discretion to GOP politicians, are they equally at ease with giving it to Joe Biden, Kamala Harris, or Elizabeth Warren? How about the bureaucrats Democratic presidents are likely to appoint to federal regulatory agencies tasked with implementing such common carrier regulations (and deciding which firms should be subject to them)?
Liberal advocates of social media regulation (of whom Warren is a prominent example) should ask themselves whether they would be willing to entrust such regulatory authority to the likes of Donald Trump or Josh Hawley. Given the chance, those guys would be happy to make social media great again – under their definition of greatness, of course.