A recent Federalist Society debate between NYU law professor Richard Epstein and the Cato Institute’s Clark Neily offered an illuminating preview of an urgent legal question soon to be addressed by the U.S. Supreme Court: can states constitutionally regulate the content moderation policies of social media platforms like Facebook and X (Twitter)?
Florida and Texas say “yes.” A Florida law bars social media companies from banning political candidates and removing anything posted by a “journalistic enterprise” based on its content. A Texas law prohibits platforms with at least 50 million active users from downgrading, removing, or demonetizing content based on a user’s views. Both bills are a response to legislative perceptions of tech censorship against conservative speakers.
These two laws are based on the premise that states can regulate online platforms. But two federal courts came to two entirely different conclusions on that point. In 2022, the U.S. Court of Appeals for the Eleventh Circuit struck down the Florida law, finding “that it is substantially likely that social-media companies – even the biggest ones – are ‘private actors’ whose rights the First Amendment protects ...” Also in 2022, the Fifth Circuit Court of Appeals ruled for Texas, allowing the state law to stand.
In the FedSoc debate, Epstein and Neily agreed about many of the problems some have with social media platforms but diverged – radically – on the remedies.
Epstein argued that social media companies should be regulated like “common carriers,” fee-based public transportation businesses and entities offering communication transmission services such as phone companies. Under federal law, common carriers are required to provide their services indiscriminately; they cannot refuse service to someone based on their political views. Epstein – who himself was deplatformed from YouTube for offering contrarian views on Covid-19 policy – believes this is an appropriate requirement for social media platforms, too.
Epstein cited a number of examples that he classifies as bad behavior by social media companies (collusion with government, acquiescence to government coercion, effective defamation of the deplatformed) which, in his view, compound an underlying censorship concern. He said:
“…[I]t’s a relatively low system of intervention to apply a non-discrimination principle which is as much a part of the constitutional law of the United States as is the freedom of expression principle….”
Neily, by contrast, took the Eleventh Circuit’s perspective, arguing that social media platforms are private companies that make constitutionally protected editorial decisions in order to curate a specific experience for their users. Neily said:
“Even the torrent of Richard’s erudition cannot change three immutable facts. First, social media platforms are private property. There are some countries where that doesn’t matter, and we’re not one of them. Second, these are not just any private companies. These are private companies in the business of speech – of facilitating it and of curating it. That means providing a particular kind of experience. And third, you simply cannot take the very large and very square peg of the social media industry and pound it into the very round hole of common carrier doctrine or monopoly theory or regulated utilities ….”
One of the examples of the bad behavior to which Epstein alludes is presently being litigated in Missouri v. Biden. In that case, it is alleged that the government coerced social media platforms into downgrading or removing content that did not comport with the government’s efforts to ensure the provision of accurate information to the public regarding the Covid-19 pandemic, such as the effectiveness of vaccines. And while coercion is certainly reprehensible, we again agree with Neily as to how it should be addressed – through existing legal remedies. Said Neily: “What we should be doing instead [of regulating] is identifying the officials who engaged in this conduct and going after them with a meat axe.”
When platforms engage in content moderation practices that are aggressive, they risk compromising their status as mere hosts of other’s content to become publishers of the content. The threat of losing the liability protections of Section 230 in these cases would serve as a useful deterrent to egregious content modification.
Meat axes and other hyperboles aside, what we need most is an articulable roadmap for distinguishing between coercion and legitimate government interaction with tech platforms. Advocates of the common carrier argument tend to accurately diagnose the problem but overprescribe the solution. The preponderance of new issues that would arise if we transformed platforms into common carriers is staggering. Shareholder value would plummet, and retirement plans would suffer.
And then there’s the problem of deciding which particular bureaucrats should be entrusted with overseeing these thriving, innovative, bleeding-edge technology companies, and the social media townhall. It’s unlikely the federal bench is that deep.
We cannot seamlessly apply common carrier doctrine to social media platforms, nor should we nullify their constitutional rights just because of their success.
As Neily said: “The idea that somehow you begin to lose your First Amendment rights just because you create some new way of affecting public discourse or even the political process, just because you hit it big … That is utterly alien to our tradition.”