The Patriot Post® · A Tough Speech Case at the Supreme Court

By Douglas Andrews ·

This case stinks. That’s it in a nutshell for conservatives.

On Monday, the U.S. Supreme Court wrestled with two laws — one in Florida and the other in Texas — that impose restrictions on social media companies seeking to control the content on their platforms.

We know how this works: Left-leaning Big Tech companies have been steadily and reliably hostile toward conservative speech on social media, ostensibly in the name of fighting disinformation and a panoply of -isms — racism, sexism, extremism, anti-transgenderism, and the like. So Florida and Texas fought back by passing laws that restrict these social media platforms from silencing speech they find inconvenient. But after nearly four hours of oral arguments, a majority of the justices seemed skeptical that the states could do so without violating the companies’ First Amendment rights.

The two court cases at issue — Moody v. NetChoice and NetChoice v. Paxton — are aptly described by the Wall Street Journal’s editorial board:

The Florida law bans large social-media platforms from removing the accounts of political candidates, or suppressing posts by or about them. Platforms also can’t take “any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast,” and they must apply their standards “in a consistent manner” among their users.

The Texas law bars platforms from making editorial decisions based on the viewpoint of a user’s expression, which isn’t clearly defined. The law is so broad it could be read to bar platforms from suppressing pro-Nazi speech or content that glorifies eating disorders. Both laws require platforms to explain in detail why posts are removed. Companies could face stiff government penalties and lawsuits.

As Chief Justice John Roberts put it: “What the government’s doing here is saying, ‘You must do this. You must carry these people. You’ve got to explain if you don’t.’ That’s not the First Amendment.”

And he’s right. Congress shall pass no law

Left-wing justice Elena Kagan echoed Roberts: “Why isn’t that, you know, a classic First Amendment violation for the state to come in and say, ‘We’re not going to allow you to enforce those sorts of restrictions’?”

Roberts spelled it out even more succinctly and grimly, reminding us that the First Amendment bars the government from censoring speech but not private companies. So, he said, “They can discriminate against particular groups that they don’t like.”

Texas Solicitor General Aaron Nielson, though, characterized his state’s law as a “modest effort to regulate” the power of social media platforms that is “nowhere near the heartland of the First Amendment.”

Like we said: This case stinks.

But the First Amendment is the First Amendment. And trust us: We at The Patriot Post have felt the wrath of these speech-stifling leftists, particularly the so-called “news raters.” As our Mark Alexander writes:

You have heard of the so-called “fact-checkers” and “fake news busters” who pose as “journalists” with outfits like USA Today, which has targeted The Patriot Post with fabricated fake fact-checks. Under the pretense of “objective journalism,” their mission is the systemic redlining of free speech — and in ways that are imperceptible to most Americans. They operate primarily under the umbrella of Demo/Leftmedia propagandists who, in recent years, have perfected their scheme to undermine the First Amendment — and, in effect, rig elections.

Monday’s questioning, though, wasn’t entirely one-sided. As NBC News reports, “Justices from across the ideological spectrum raised fears about the power and influence of big social media platforms like YouTube and Facebook and questioned whether the laws should be blocked entirely.” So there’s that.

As SCOTUSblog put it: “The justices pressed [Paul Clement, who represented the trade groups], to discuss the interaction between the Texas law and Section 230 of the Communications Decency Act, which generally shields tech companies from liability for content published by others. Justice Neil Gorsuch told Clement that, in his view, there is a tension between the idea that a tech company can’t be held liable for its users’ speech and the idea that moderating that content is the tech company’s speech. Is it speech for purposes of the First Amendment, he asked, but not for purposes of Section 230?”

“Separating the wheat from the chaff here is pretty difficult,” said Justice Neil Gorsuch, who was the first of three Donald Trump appointees to the High Court.

Justice Clarence Thomas was more pointed in his critique of the Big Tech litigants: “Can you give me one example of a case in which we said that the First Amendment protects the right to censor?”

Justice Samuel Alito, too, seemed more inclined to uphold the Florida and Texas laws. Is content moderation, he asked, “actually more than a euphemism for censorship?”

These are great questions, and the justices have their work cut out for them as they try to strike a balance between free speech and constitutional protection. A landmark decision is expected by this summer.