In an unusual 5-4 vote, the Supreme Court has vacated a so-far-unexplained order from the 5th Circuit that stayed enforcement of a Texas district court order barring Texas from enforcing its new social media law. Among other things, this Texas law, if enforceable, could well require large social media companies such as Twitter and Facebook to re-platform Donald Trump after he was deplatformed for encouraging the January 6 insurrection at the United States Capitol. The district court held the statute likely violated the First Amendment and a Fifth Circuit panel, offering no reason thus far, stayed that order. That stay would have allowed Texas to enforce its law pending the appeal of the case. As it stands now, Texas cannot enforce its law. But the 5th Circuit will eventually issue an opinion and allow Texas to enforce its law, and the issue will almost certainly be back before the Supreme Court. This is especially true because of last week’s contrary 11th Circuit opinion, striking down a similar Florida law as violating the First Amendment rights of the private platforms to decide what content should be included or excluded.
The majority (C.J. Roberts, and Justices Barrett, Breyer, Kavanaugh, and Sotomayor) did not give a reason for vacating the 5th Circuit stay. Justice Kagan dissented, probably not on grounds of the merits but her views on whether the Supreme Court should be getting involved in these major pending cases on the shadow docket rather than letting them work their way through the courts.
But Justice Alito wrote an opinion for himself, Justice Thomas, and Justice Gorsuch. In the opinion, Alito does not say that the law is in fact unconstitutional. He argues that the matter is uncertain, buying into the arguments advanced in the past by Justice Thomas, Eugene Volokh, and others, that social media companies can be regulated like “common carriers” (such as the phone company) and forced to carry speech that they do not like.
The argument is one that is audacious and shocking for those (like Justice Thomas, less so for a Justice like Alito) who have taken near absolutist positions on First Amendment rights in the past, especially on issues such as campaign finance laws. I write about this in great detail in my Cheap Speech book, and explained the point briefly in this Slate piece:
It would be bad enough if the Supreme Court simply applied outmoded libertarian thinking to today’s information cesspool, believing that the truth will inevitably rise to the top and give voters the tools they need for informed decisionmaking. But the court’s inconsistent thinking on the First Amendment could make things far worse.
Consider the decision of Facebook and Twitter to “deplatform” Trump after he helped inspire the violent insurrection at the U.S. Capitol on January 6, 2021. Meta, which owns Facebook, and Twitter are private companies that make decisions all the time about what content to include, exclude, promote, and demote. The First Amendment does not limit these private companies and they can regulate speech in ways the government could not do. These companies remove hate speech, pornography, and other objectionable content from their platforms all the time.
But Justice Clarence Thomas—yes, the same Justice Thomas who believes that virtually all campaign finance laws violate the First Amendment—recently went out of his way in a case not presenting the issue to raise support for new laws, such as one passed last year in Florida, that would require social media companies to carry the content of politicians they do not like, even if those politicians support election violence or undermine voter confidence in the integrity of the electoral process. Justice Thomas has suggested that social media platforms are like telephone companies that could be subject to “must carry” provisions and cannot discriminate among customers based upon their political views.
But social media companies are much closer to newspapers and TV stations than telephone companies. The former but not the latter curate content all the time, and they can decide who appears on the platform and how. Justice Thomas appears to believe in the freedom of FOX News or the Atlantic to create a coherent brand with a message, but not Twitter or Facebook.
It is hard not to conclude that Justice Thomas was motivated toward this anti-libertarian position requiring private companies to carry speech they would rather not include on their websites because doing so would favor Donald Trump and those like Trump.
The good news from today’s opinion is that it looks like there are 5 or 6 votes at least to reject the Texas law and to hold that just like newspapers can decide what content to include or exclude, social media companies can do so too. Whether Section 230 of the Communications Decency Act recognizes it or not, social media companies exercise editorial discretion all the time. They should not be forced as private actors to carry dangerous and anti-democratic speech. People who want such speech can easily find it on Trump’s “Truth Social” platform or elsewhere.