Published March 23, 2022
Earlier this week, Twitter locked the account of The Babylon Bee, a right-leaning parody site, after it awarded Rachel Levine, a transgender Biden administration official, the title of “man of the year” in reaction to USA Today naming Levine one of its “women of the year” last week. This is just the most recent example in a long train of Big Tech censorship actions.
Taking a stand against Big Tech censorship, the state of Texas passed an anti-discrimination social media law (HB 20) last September. It seeks to limit Big Tech companies’ power to silence viewpoints they don’t like.
The law does so by prohibiting social media platforms with more than 50 million active monthly users in the United States from censoring users or their expressions based on the viewpoint expressed. Along with explicitly prohibiting viewpoint discrimination by social-media companies, the law enables censored users to seek declaratory and injunctive relief in court.
Texas’ law was cause for hope for many nationwide who want the giant social media platforms to be held accountable for their suppression of free speech. Unfortunately, Judge Robert Pitman, an Obama appointee, in early December enjoined the Texas non-discrimination social media law from going into effect.
But those who want a fair and democratic public discourse need not despair yet. That lower court decision was appealed, and soon the U.S. Court of Appeals for the Fifth Circuit will hear oral arguments on this appeal.
A wide range of distinguished amici have argued to the court that it should uphold the Texas statute and thereby protect Americans from censorship. The briefs include a profound story by David Mamet, an eminent doctor’s account of how even privatized suppression threatens science, and an exploration of the thought of John Stuart Mill by Columbia students against censorship.
Texas’ Law Doesn’t Intrude on Free Speech
What may need more explanation here is why the protection against tech censorship does not intrude on the tech company’s own free speech. As argued in an amicus brief filed by the Center for Renewing America and the Claremont Institute’s Center for Constitutional Jurisprudence, there are good First Amendment reasons for upholding the Texas law and reversing Judge Pitman’s flawed and biased order.
First, the appellate court should correctly recognize that the First Amendment applies differently to speakers than to those who host or transmit speech. While the government forcing a person or group to speak a particular message raises First Amendment concerns, regulating the terms under which entities host or transmit others’ speech complies with the Constitution.
For instance, for centuries courts have required common carriers, industries that play a central role in economic, social, and political life, such as telephones, utilities, and airlines, to treat customers without discrimination. The numerous legal requirements have never raised First Amendment concerns. HB 20’s protection of Texans against social media’s discriminatory viewpoint censorship falls within this general rule, allowing for government regulation of hosting or transmitting speech to ensure such channels of communication are open to all comers.
Social Media Censorship Isn’t ‘Editorial Discretion’
Pitman’s opinion errs by treating social media’s discriminatory censorship as “editorial discretion” that expresses a coherent “message” worthy of First Amendment protection like a newspaper op-ed page or a parade.
Unlike a newspaper editor or parade organizer, however, social media companies do not review all content they host; they review only a tiny fraction. A newspaper op-ed page or parade expresses the judgment of its editors and organizers with every article or marcher it includes, as well as with the newspaper or parade as a whole. By necessity, a newspaper or parade, given its limited size, exercises powerful editorial control over its content.
In contrast, a social media firm is a passive conduit. It rarely edits, and its infinite bandwidth gives it no need to edit. Moreover, platforms cannot express themselves in the billions of posts they cannot review. Nor can the platforms’ stealthy, inconsistent, and often hidden acts of content moderation constitute a coherent “message,” let alone an expression worthy of First Amendment protection.
Finally, non-discrimination requirements to refrain from discriminatory censorship of others do not burden the platform’s own speech because social media platforms are free to tweet or post as much as they’d like.
Social Media Platforms Are Common Carriers
Secondly, the court should recognize that Texas can lawfully regulate social media because the platforms are common carriers. For centuries, common carrier laws have required certain industries that hold themselves out to the public to serve all without discrimination. Communications networks have always operated under these non-discrimination requirements. The Texas social media law simply applies these historical precedents to the modern public square: social media platforms.
Pitman ignores the centuries of cases in which courts and regulatory agencies imposed non-discrimination requirements on railroads, telephones, and internet firms and simply asserts that “this Court starts from the premise that social media platforms are not common carriers.”
The opinion justifies this finding with no precedent, but with circular reasoning that because social media companies currently discriminate, they cannot be regulated as common carriers. By Pitman’s reasoning, then, if a telephone company started to discriminate, the state of Texas could no longer regulate it as a common carrier.
Left’s Disturbing Protection of Big Tech
Undermining the power of the state to regulate is indeed a strange move for liberals like Pitman, who generally welcome government power into every aspect of our lives. Pitman’s ruling reveals the left’s disturbing protectiveness of Big Tech and a preference for a public discourse controlled by content moderators.
Furthermore, in recognizing Big Tech’s deplatforming and censoring as a First Amendment-protected exercise of “editorial discretion,” the lower court is jeopardizing the bodies of civil rights and common carriage law by essentially asserting that discrimination is expression worthy of First Amendment protection.
Pitman and others on the left incorrectly view the First Amendment’s free speech guarantees as protecting Big Tech’s censorship, rather than preserving Justice Oliver Wendell Holmes’s famous concept of the vigorous marketplace of ideas.
It is long past time for states to impose non-discrimination requirements on Big Tech and to hold these companies accountable for their viewpoint censorship. The Fifth Circuit should recognize the substantial government interest in doing so and reverse the lower court’s error-ridden decision. The Texas law would serve the nation as a model for restoring our cherished principles of free speech.
Clare Morell is a policy analyst at the Ethics and Public Policy Center, where she works on the Big Tech Project. She worked in the White House Counsel’s Office and the Justice Department during the Trump administration.