I have written this piece for Slate. It begins:

On Monday, the Supreme Court will hear arguments in a pair of cases out of Texas and Florida that could force major social media platforms to carry posts from Donald Trump or others who lie about elections being stolen or obliquely encourage election-related violence. A ruling in favor of these states would turn the First Amendment upside down and create the conditions for undermining American democracy. If there wasn’t so much else swirling around our elections and democracy right now, this case would be commanding everyone’s attention.

Moody v. NetChoice LLC and NetChoice LLC v. Paxton arise out of the actions that Facebook, Twitter (now X), and other social media companies took in removing Trump from their platforms after the attack on the U.S. Capitol on Jan. 6, 2021. Trump had been relentlessly calling the 2020 election results into question despite having no reliable evidence of widespread fraud or irregularities. In an infamous tweet in December 2020, he encouraged his supporters to come to Washington for “wild” protests on Jan. 6, the day that Congress would be counting the states’ Electoral College votes to confirm Joe Biden as the election victor. After Trump and his supporters spoke in speeches on the Ellipse on Jan. 6, a crowd stormed the Capitol. The violent incident left 140 law enforcement officers injured (four later died by suicide) and four protesters dead. After Trump failed to immediately condemn the violence and call for the siege to end, the platforms had enough, determining that Trump had violated their terms of service and needed to be removed.

In response to the removal of Trump and concern over what they call “censorship” of conservatives, Florida and Texas each passed laws that make content moderation difficult if not impossible for major social media companies. The laws differ in some particulars, but both would make it illegal to remove the kinds of content we saw from Trump before he was deplatformed in 2020. A coalition representing the platforms sued, arguing that the laws violated the platforms’ First Amendment rights to decide what content to include or exclude on their platforms. The coalition won their primary arguments in the Florida case but lost in the Texas case, and the Supreme Court is hearing both of them on Monday….

There’s also a huge irony in seeing people like Volokh or Justice Clarence Thomas express support for the common carrier theory and requiring private companies to carry speech they may disagree with or even find dangerous. In his amicus brief supporting Florida’s appeal, Trump approvingly quoted Volokh: “Recent experience has fostered a widespread and growing concern that behemoth social media platforms … have ‘seriously leverage[d their] economic power into a means of affecting the community’s political life.’ ”

That kind of equalization rationale has been rejected by the libertarians on the court in cases like Citizens United, the case that freed corporations to spend unlimited sums in support of candidates for election to office. There, the court wrote (quoting a 1976 case, Buckley v. Valeo) that it is “wholly foreign” to the First Amendment to seek to equalize speech, and that the First Amendment can’t do anything to stop those with economic power from translating it into political power.

Now that it is conservatives yelling “censorship” rather than liberals complaining about big corporations seeking to have an outsize influence on whom is elected and on public policy, is the court really going to change its position on whether the government can mandate speech equalization depending on whose ox is being gored?…