May Twitter, Facebook, or YouTube censor your posts and ban you from using their social media platforms? May a state government require large social media platforms to allow users and posts to present lawful information, ideas, and viewpoints with which the platforms disagree? Florida and Texas both enacted laws to restrict platforms from censoring and banning users whose content the platforms disliked. Two different federal appeals courts in 2022 ruled on whether these two states’ laws were constitutional — and came out on opposite sides.

The following three scenarios frame the key issues.

Scenario A: Commercial Ground Transportation

A fellow boards a private company-owned, regularly scheduled commercial bus bound for Berkeley, California, wearing a T-shirt proclaiming in big letters: Save Humanity — Kill Robots.

May the bus company, which pledges to serve the public without discrimination, eject the fellow, make him cover up the T-shirt’s message, or ban his ridership permanently because it disagrees with the T-shirt? Maybe experts don’t like its violent tone, or worry that it might offend other passengers.

Scenario B: Newspapers and Magazines

The same fellow submits a letter to the local newspaper, advocating the same message: Save Humanity – Kill Robots. May the Op-Ed page editor choose not to publish it for any one of a variety of reasons?

Scenario C: Large Social Media Platforms

The same fellow next joins a social media platform such as Twitter or Facebook, and posts a cartoon meme depicting a human shooting at a group of fleeing robots. Caption: Save Humanity – Kill Robots. May the platform erase that post because the message conflicts with the platform’s pro-robot views, promotes violence against robots, or might offend someone?

For any of the same reasons, may the platform ban that user permanently from any future posting on any subject?

Set aside any Blade Runner– inspired views about roboticide to prevent AI tyranny. These three scenarios highlight the issues that motivated Florida and Texas to enact laws to prevent the large, publicly available social media platforms from: (1) deleting user posts based upon their (totally legal) messages; and (2) banning and de-platforming users for a period or forever based upon their (totally legal) viewpoints and messages.

Unhappy about Florida’s and Texas’ restrictions, the platforms’ trade association, NetChoice (and others), filed suits in federal courts to block enforcement of the new laws. Both states’ statutory frameworks have many elements, and NetChoice challenged most or all of them. Here we’ll focus on only the fundamental problems isolated in Scenarios A, B, and C above.

Eleventh Circuit Decision

In May 2022, NetChoice won when the federal Eleventh Circuit Court of Appeals declared unconstitutional Florida’s law prohibiting large social media platforms from discriminatorily censoring messages and banning users when the platforms disliked or disagreed with the message or user. Concerning these issues, the Eleventh Circuit, in NetChoice, LLC v. Attorney General of Florida, held:

1. The large social media platforms (the “Platforms”) are “private actors” entitled to First Amendment freedom of expression, akin to privately-owned newspapers.
2. The Platforms are not “common carriers” like the telephone and telegraph companies who must serve the public without content discrimination.
3. By expressly permitting the social media platforms to exclude what they find “objectionable,” the Federal Communications Act of 1996, 47 U.S.C. § 230, recognizes and protects social media platforms’ ability to discriminate among messages — disseminating some but not others — effectively declaring the Platforms are not common carriers or telecommunications carriers with diminished First Amendment rights.
4. When the Platforms “curate” or “moderate” the user-posted content on their forums, they are exercising “editorial judgment” like newspapers and television cable operators, thus engaging in First Amendment protected “expressive conduct.”
5. The government may not interfere with the Platforms’ editorial judgment by prohibiting them from deleting posts, highlighting and prioritizing some posts over others, and banning users entirely based on the users’ identity or viewpoints.
6. Preventing unfairness to certain social media users or points of view is not a substantial governmental interest; private actors have a First Amendment right to be unfair, i.e., a right to have and express their own points of view and exclude others.
7. Florida’s statutes unconstitutionally abridge the Platforms’ First Amendment rights by compelling the Platforms to forego their content moderation and editorial discretion, in effect telling the Platforms what they can and can’t say.

Fifth Circuit Decision: platforms are not like newspapers

In September 2022, however, NetChoice lost on its challenge. The Fifth Circuit Court of Appeals, in NetChoice, L.L.C. v. Paxton, upheld Texas’ similar law prohibiting large platforms from banning users and censoring otherwise legal speech because of the views expressed. The court there held:

1. The Platforms are not like newspapers that use editorial discretion to choose nearly all of their content for publication; the Platforms target user-submitted content for exclusion based upon algorithms or other users’ reports.
2. The Telecommunications Act of 1996 declares that the Platforms “shall [not] be treated as the publisher or speaker” of content developed by other users; Section 230 reflects Congress’s judgment that the Platforms do not operate like traditional publishers and are not “speak[ing]” when they host user submitted content.
3. Federal law 47 U.S.C. § 202(a), prohibits telecommunications common carriers from “mak[ing] any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services.”
4. The First Amendment permits regulating the conduct of an entity that hosts speech, but it generally forbids forcing the host itself to speak or interfering with the host’s own message.

5. Texas’ law, H.B. 20, neither compels nor obstructs the Platforms’ own speech in any way.
6. Censorship by deleting posts and barring users, although consistent with the Platforms’ own opinions, is not a form of “speech” but is conduct.
7. H.B. 20 does not chill free speech, it chills censorship, by protecting other people’s speech and regulating the Platforms’ conduct.
8. H.B. 20 advances “an important governmental interest in protecting the free exchange of ideas and information” without burdening the Platforms’ own freedom of expression.
9. The government and courts have treated novel communications enterprises as common carriers who hold themselves out to the public and may not discriminate against users arbitrarily because of the identity or viewpoint of the users.
10. The Platforms should be treated as common carriers like the telephone and telegraph services and akin to transportation providers, all of whom “hold themselves out to serve all members of the public without individualized bargaining.”

First Amendment vs. Common Carrier Doctrine

Whenever we see laws intentionally affecting whether people can write, speak, or express themselves, the U.S. Constitution’s First Amendment comes to mind. American courts have interpreted the First Amendment as protecting the right of any person or entity to “freedom of speech” and “freedom of the press.” These two rights together aim to restrict government from commanding, unreasonably burdening, or prohibiting spoken and written communication.

Notably, however, the First Amendment does not apply to govern how purely private persons and entities allow or restrict speech in their private domains. Referring to Scenario B above, a private newspaper therefore can publish or reject an article or letter solely because of its content or author.

Long before the First Amendment became organic law, however, the “common carrier doctrine” existed to require transportation companies who offer service to the public to serve customers generally without arbitrary discrimination. Essentially, a business that makes available private property and services for broad public use, such as commercial wharfs, railroads, trucking, buses, telegraph, and telephone services, will likely be treated as a “common carrier” Under English common law, the business would be deemed “affected with a public interest,” and under American law would be subject to regulations including non-discrimination requirements.

Referring back to Scenario A above, the common carrier doctrine prevents the bus driver from ejecting the rider wearing the Save Humanity – Kill Robots t-shirt.

The common carrier doctrine is firmly entrenched and applies to telecommunications providers. Prof. Genevieve Lakier pointed out, in a 2021 Harvard Law Review article, that the common carrier doctrine has previously overcome private communications businesses’ discriminating against users and speech:

It was in order to protect the independence of the newspaper press, and to prevent companies like Western Union and the AP from manipulating the flow of information to the public that lawmakers in dozens of states imposed on telegraph companies and telegraph newsgathering associations nondiscrimination duties similar to those the postal laws imposed on the post office.

To spotlight the point, ask anyone: Would it be okay for the phone company to censor your conversations, bleep out words, or deny you service altogether, because the company doesn’t like what you are saying on the phone? Assuming your speech was not itself unlawful, you would expect the phone company to let you talk, whether to one other person or to a large audience as a talk-radio caller. As currently understood, the First Amendment does not consider phone company censorship to fall within the company’s “freedom of expression” or “editorial discretion.”

Scenario C above thus presents the dilemma clearly: Are the Platforms like newspapers with total control over who uses their systems and what they may say – and like newspapers, potentially liable for defamation they may publish? Or are the Platforms like common carriers, holding themselves out as a public communications service, not subject to defamation liability, and required generally to facilitate otherwise lawful speech and expression by any and all users

Free Speech vs. Silencing Speech

Neither the Eleventh Circuit nor the Fifth Circuit decision invested much into discussing the purpose of freedom of speech and press. Fundamentally, the First Amendment expresses a bias favoring more speech, more expression, more freedom to convey and opine about information. If you believe another speaker is stating falsehoods, the remedy is to speak out yourself – not silence the other speaker. As Justice Brandeis in 1927famously reminded:

If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

The two states urged their laws reduce private arbitrary viewpoint-based censorship so that more speech is encouraged. The Fifth Circuit agreed; the Eleventh Circuit rejected the notion.

In both federal cases, the Platforms expressly defended their right to enforce silence and muzzle speakers on their huge international public forums. The Platforms defended their right to highlight views they prefer while deleting opposing views and persons. Certainly, no person needs to use the Platforms at all, so no person needs suffer the effects of emphasized views and prevented speech.

But follow that logic. If you don’t like being ejected from a bus because of your views, you don’t need to ride the bus. Or ride a train or fly on an airplane? Right?

In fact, robust economic theory arguments can support greater liberty for all business entities, contending there should be no common carrier doctrine at all. That view says any private business should be able to discriminate on terms of price, service, or any other factor. As of today, however, that view is out of favor. Even the lawyers and executives of the Platforms don’t criticize common carrier limitations on private business liberty. The Platforms want such liberty for themselves, of course, but not for other businesses.

Social Media Policies Can Foster Coercion

Neither Circuit court decision addressed the power of mass communication to translate into governmental coercion. The connection is indirect but real.

Suppose the Platforms allow user posts that demand state governors shut down all “non-essential” businesses due to the claimed wide lethality of a certain virus, halting commerce, creating product and service shortages, and leaving millions of people unemployed. And simultaneously the Platforms steadfastly block any posts objecting to lockdowns, showing evidence the virus was not lethal in the vast majority of cases, or raising alarms about social and psychological damage caused by the broad disruptions.

The Platforms’ content control would predictably cause either (1) public acquiescence to lockdowns, (2) public clamor for more lockdowns, or (3) both. State and federal authorities who followed “public opinion” reflected in social media would be encouraged to impose lockdowns. Authorities could assert they are doing the “will of the people.” Lockdowns are always enforced coercively using police power and criminal penalties.

The Platforms that fostered the one-sided public discussion would be a substantial cause of governments taking control of the economy by force. One worldview would celebrate the growth of government rule by experts, enforced by police and financial system controls. Another worldview would legitimately fear and resist such burgeoning top-down power, citing the sordid bloody history of such regimes in the 20th Century alone.

Freedom of Speech Should Be Independent of Current Government

The U.S. Supreme Court may have to decide whether state governments may prohibit large social media platforms from censoring and banning users and speech on the basis of viewpoints It’s ironic how the Platforms, many politicians and some judges all urge that the First Amendment justifies concentrating power to censor into the hands of huge corporations who can then dominate discussions and strongly influence government action.
To overcome the solidified power over information, thoughts, and opinions that the Platforms currently wield, the long-term plan might be: alternative voices establishing their own platforms to host opposing users and content. As Thomas Jefferson wrote: “we have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors.”

To forestall tyranny, there must ever be a free and open marketplace of ideas, with many speakers and forums, the very goal of the First Amendment.