Social Media Giants Face Fresh Scrutiny From Conservative Justices

Several suggested that a conflict exists between the companies’ First Amendment claims to free speech and their protection from liability under Section 230.

Associate Supreme Court Justice Samuel Alito poses for the official photo at the Supreme Court in Washington on Oct. 7, 2022. Olivier Douliery/AFP via Getty Images

Social media companies’ immunity from legal liability came under scrutiny at the Supreme Court on Feb. 26.

Conservative justices questioned whether the platforms’ protection under communications law prevented them from claiming First Amendment protection for content moderation.

Their comments came during oral argument in Moody v. Netchoice and Netchoice v. Paxton—two high-profile cases reviewing the constitutionality of Texas’ and Florida’s broad laws regulating social media platforms.

Netchoice, an organization representing platforms like Facebook, and the Biden administration told the justices that their content moderation (deplatforming, shadow banning, censoring content, etc.) was a form of expressive speech protected by the First Amendment.

Many of the conservative justices, however, expressed concern that Netchoice’s First Amendment claims contradicted claims that platforms are protected under Section 230 of the Communications Decency Act.

That controversial section of the law allows platforms to avoid civil liability for “good faith” attempts to “restrict access to or availability of 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.”

Justice Samuel Alito suggested that social media platforms were attempting to classify their conduct as speech when it suited them.

“I don’t understand the rationale for 230, if it wasn’t that you can’t be held responsible for that because this is really not your message,” he told Netchoice attorney Paul Clement.

“Either it’s your message or it’s not your message. I don’t understand how it can be both. It’s your message when you want to escape state regulation, but it’s not your message when you want to escape liability under state tort law.”

Justice Amy Coney Barrett was similarly worried about the Section 230 implications.

“If what we say about this is that this is speech that’s entitled to First Amendment protection, I do think then that it has Section 230 implications for another case, and so it’s always tricky to write an opinion when you know there might be land mines that would affect things later,” she said.

Section 230’s Intent

Mr. Clement denied that his clients were being inconsistent. Both he and Solicitor General Elizabeth Prelogar argued that Congress intended to protect activity like content moderation as editorial speech.

He distinguished between speech contained in individual short stories and the editorial speech constituted by forming an anthology of those works.

“Those are both protected First Amendment decisions. You can distinguish between the underlying material and the editorial decisions,” he said.

“Now, at common law, the publisher was responsible for both, and so they were still liable for republishing the authors’ work. And that’s precisely what Congress wanted to get rid of in 230, and they wanted to essentially give our clients an incentive to weed out of the anthologies the stuff that was harmful for children and problematic.

Supreme Court Associate Justice Samuel Alito on Capitol Hill in Washington on March 7, 2019. Chip Somodevilla/Getty Images

An amicus brief from Sen. Josh Hawley (R-Mo.), one of Big Tech’s most prominent critics, maintained that the platforms were trying to assert a “contradictory” position about their own speech under Section 230.

“The Court should not bless the platforms’ contradictory positions, much less constitutionalize them,” Mr. Hawley, who is ranking member of the Senate Judiciary Committee’s Subcommittee on Privacy, Technology, and the Law, wrote.

“Doing so would effectively immunize the platforms from both civil liability in tort and regulatory oversight by legislators,” he said, adding that “the platforms’ argument completely undercuts the logic of Section 230.”

“Under Section 230, providers shall not be treated by courts as the publishers of others’ speech because, in fact, they are not. They are, in principal part, conduits.

“The statute explicitly distinguishes an ‘information content provider’ from an ‘interactive computer service’ by stipulating that a ‘content provider’ is the individual responsible ‘for the creation or development of information provided through’ the internet or any related ‘interactive computer service,’” he wrote, quoting the statute.

Co-Authors of 230 Weigh In

By contrast, Section 230’s co-authors—Sen. Ron Wyden (D-Ore.) and former Rep. Christopher Cox (R-Calif.)—disagreed, arguing that Section 230 protects the type of activity the social media companies defended as covered by the First Amendment.

“Section 230 plainly confirms that internet platforms are publishers and speakers that select, arrange, edit, and moderate third-party content,” their amicus brief read.

Sen. Ron Wyden (D-Ore.) speaks during a Senate Finance Committee hearing in the Dirksen Senate Office Building on Capitol Hill, on Oct. 19, 2021. Mandel Ngan/Pool via Reuters

“The statute’s legislative history, including floor debate during which members of both parties made the same arguments in support—and no member argued to the contrary—demonstrates that Section 230 was enacted for the very purpose of protecting internet platforms’ exercise of their First Amendment rights to editorial control in moderating user speech.”

Their amicus brief maintained that Section 230 does not shield social media platforms from liability when publishing their own content as opposed to moderating their users’ content.

“Section 230 never denies platforms’ editorial discretion, it actually encourages it—that was the whole thrust of the legislation,” Jesse Melugin, director of the Competitive Enterprise Institute’s Center for Technology and Innovation, told The Epoch Times.

“The whole purpose was to make a distinct liability structure for a then-new kind of publisher.”

As Mr. Hawley indicated, the debate over social media entails questions about whether the platforms should be considered mere conduits of information. Texas Solicitor General Aaron Nielson likened social media platforms to telegraph companies.

Justice Alito, meanwhile, said he didn’t think social media platforms were like telegraph companies or newspapers.

“I don’t know how we could decide this case by saying—by jumping to one side or the other of this case law,” he said during oral argument in Netchoice v. Paxton.

The U.S. Court of Appeals for the 5th Circuit had upheld Texas’ law, saying it comported with how common law historically has treated common carriers. By contrast, the 11th circuit rejected a comparison to common carriers like telegraph companies.

‘Conservative’ Differences

Justices Neil Gorsuch and Clarence Thomas were also skeptical about how social media platforms could claim an exemption under Section 230 while also classifying their conduct as activity protected by the First Amendment.

At one point, Justice Thomas asked Mr. Clement whether the Court had “ever said the First Amendment protects the right to censor.”

Justice Gorsuch wondered whether the platforms’ terms of service presented a conflict with their editorial rights when claiming that they offered an open venue where people could express their ideas freely.

“Isn’t the whole premise ... of Section 230 that they are common carriers—that they’re not going to be held liable in part because it isn’t their expression, they are a conduit for somebody else?” he asked, prompting Ms. Prelogar to disagree.

It’s unclear how the Court will rule. Justice Ketanji Brown Jackson expressed skepticism toward the idea that the Court should block the laws on Mr. Clement’s “facial challenge,” which refers to the contention that all applications of the laws are unconstitutional rather than just particular applications.

Chief Justice John Roberts and Justice Brett Kavanaugh, typically more conservative than others like Justice Elena Kagan, offered comments indicating they thought social media platforms were protected by the First Amendment or at least were different from traditional common carriers.

“You’re assuming that they are like the telegraph. It seems to me that that’s a big part of what the case concerns,” Justice Roberts told Mr. Nielson.

“And I’m just not sure that, I mean, the telegraph had a particular, compelling type of monopoly. I mean, if you didn’t want to use the telegraph that was there, you usually didn’t have an alternative choice.

“Or whether you’re talking about railroads or other types of common carriers, I’m not sure the same thing applies with respect to social platforms.”