On Tuesday, the Supreme Court came within a single vote of letting states censor the internet, a shockingly close call for a court that professes a profound commitment to free speech. Just five justices were willing to stand up for the principle that social media companies have First Amendment rights, an outcome that would be unthinkable just a few years ago. It is now evident that the most reactionary justices have adopted the Republican Party’s baseless paranoia about “Big Tech” censoring conservatives—and adjusted their jurisprudence accordingly.
Tuesday’s order in Netchoice v. Paxton halted a Texas law that violates nearly every First Amendment rule in the book. The measure, H.B. 20, was signed into law in September 2021 and targets the free speech rights of social media companies with “more than 50 million active users” in the U.S. each month, like Twitter, YouTube, and Meta. It prohibits these companies from engaging in content moderation by declaring that they may not “censor” users’ posts on the basis of “viewpoint.” If a platform does remove any content, it must notify the user and let them appeal the decision. These users can sue the company for imposing “viewpoint discrimination,” as can the Texas attorney general.
H.B. 20 also bars platforms from placing warning labels on users’ posts to inform viewers that they contain objectionable content, such as graphic violence or nudity. It imposes sweeping disclosure requirements, including a “biannual transparency report” to the state that details every single “action” taken against “content.” And, bizarrely, it forbids email service providers from filtering spam, allowing users to collect $25,000 every day that their provider blocks “the transmission of an unsolicited or commercial electronic mail message.”
Many of these rules are impossible to comply with. Major platforms have developed automated tools that remove billions of posts each year, and could not review and resolve each appeal mandated by H.B. 20 even if they hired millions more employees. Other rules would make these platforms unusable: Companies could not legally remove terrorist propaganda, foreign government disinformation, neo-Nazi recruitment videos, and other repulsive content. Indeed, it is an open question whether, under H.B. 20, Facebook could remove the livestreamed video of the recent white supremacist mass shooting in Buffalo.
The Supreme Court has consistently held that corporations hold the exact same First Amendment rights as real people, and that these rights include editorial discretion over speech that they disseminate. Applying these precedents, a federal judge halted H.B. 20 before it took effect, finding an egregious violation of social media companies’ free expression. Shortly thereafter, a very conservative federal appeals court blocked a similar Florida law, holding that content moderation constitutes First Amendment–protected speech. But the consistently lawless 5th U.S. Circuit Court of Appeals saw things differently. On May 11, it reinstated H.B. 20, without bothering to provide an explanation.
Two trade associations representing the targeted companies appealed to the Supreme Court. They hired several of the most prominent conservative Supreme Court practitioners, led by Paul Clement, in an attempt to persuade the justices that H.B. 20 betrays conservative values.
This gambit worked, though only by a hair. In the end, a strange coalition of justices voted to freeze H.B. 20 once again: John Roberts, Brett Kavanaugh, Amy Coney Barrett, Sonia Sotomayor, and Stephen Breyer. Justice Sam Alito wrote a dissent, joined by Justices Clarence Thomas and Neil Gorsuch; Justice Elena Kagan also dissented but did not join Alito’s opinion or write her own.
At first blush, Kagan’s vote might appear to be the most puzzling. The liberal justice surely understands that H.B. 20 is an outrageous and impracticable partisan stunt that stifles free expression. But, for better or worse, her position is consistent with her broader antipathy toward resolving major disputes on the shadow docket, without full briefing or oral arguments. Kagan has repeatedly condemned the conservatives for using the shadow docket “to signal or make changes in the law,” transforming it into “another place for merits determinations” without the usual “processes” that “legitimate the court’s authority.” She probably sought to demonstrate her adherence to this belief by noting her dissent.
Alito’s dissent, joined by Thomas and Gorsuch, is a different beast. These three justices have long exploited the shadow docket to make radical changes to the law without hesitation. They also claim to support corporate free speech—at least when corporations are trying to elect Republicans. On Tuesday, though, this trio sang a new tune. Alito wrote that it was “quite unclear” whether H.B. 20 is unconstitutional “under existing law,” because “it is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.” The justice trotted out the talking point that social media companies are analogous to “common carriers,” like telephone and postal companies, that merely transmit others’ speech without exercising their own. American law has long compelled common carriers to serve everyone equally. Perhaps, Alito suggested, social media companies are 21st century common carriers and can thus be legally barred from engaging in “viewpoint discrimination.”
As the conservative Judge Kevin Newsom noted in the nearly identical Florida case, this theory conflicts with the very basis of social media censorship laws: the proposition that major platforms are suppressing conservative views. The Republicans who passed these measures believe that platforms reveal liberal bias by, say, deplatforming Donald Trump or removing a Hunter Biden story. But that accusation only proves that, in Newsom’s words, these companies “express themselves” through “content-moderation decisions.” They cannot possibly be common carriers because they are constantly choosing which speech to promote or suppress. That’s why legislators enacted H.B. 20 in the first place! And if this process were not expressive, then nobody would complain about the alleged political bias reflected in these editorial decisions.
Alito tried to get around this commonsense conclusion by complaining that social media companies have so much “market power” that they can “shape public discussion” by shutting out “disfavored” speakers. This claim is both true and irrelevant. For many decades, the Supreme Court has held that the First Amendment applies exclusively to the government, rebuffing efforts to impose constitutional limits on private companies’ abridgment of free speech. It’s conservatives who led this charge, repudiating any state interest in regulating private censorship, even when corporations perform traditional government functions. Alito, Thomas, and Gorsuch previously endorsed this absolutist position; now they appear to have second thoughts. It is the height of hypocrisy for these justices to carve out a First Amendment exception for corporations that right-wing media has taught them to hate.
But the most ridiculous part of Alito’s dissent was his complaint that halting H.B. 20 constituted “a significant intrusion on state sovereignty.” Texas, the justice groused, “should not be required to seek preclearance from the federal courts before its laws go into effect.” Oh, really? As my colleague Steve Vladeck noted, Alito has voted to halt state laws before they take effect at least 10 times on the shadow docket. The difference? Those states—California, New York, and Maine—all have Democratic trifectas. It seems the justice believes that states deserve more respect from federal courts when they are controlled by Republicans.
Which raises another question: If only five justices are willing to defend the bedrock constitutional principles flouted by H.B. 20, are any precedents really safe at this court? Suddenly, settled law is up for grabs, and no one can predict with any real certainty which corrupt and harebrained laws will survive at SCOTUS. Tech executives should be pretty happy with Tuesday’s order: The five justices who halted H.B. 20 are certain to strike down the law when it comes before them on the merits next term. The rest of us, though, should pause to wonder how secure our own rights are when the country’s most powerful corporations and lawyers can barely convince SCOTUS to uphold the First Amendment.