Thomas Gallatin / June 2, 2022

SCOTUS Hands Big Tech a Win

The Court temporarily blocks Texas’s law against large social media companies censoring user viewpoints.

The U.S. Supreme Court temporarily blocked a Texas law that would have potentially penalized large social media platforms for imposing “viewpoint” discrimination against users. By a 5-4 vote, the Court granted an emergency request brought by tech industry groups preventing the law from going into effect. Big Tech platforms asserted that any inability to police speech on their platforms was a violation of their First Amendment rights and that it would force them “to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation.” Gee, who knew that Big Tech was the real victim here.

Texas’s Republican-controlled legislature passed House Bill 20 last year in response to Big Tech’s increasing efforts to censor users’ speech. State Attorney General Ken Paxton argued that the law was designed to actually uphold Americans’ First Amendment rights. He contended that large social media platforms like Facebook and Twitter are “gatekeepers of a digital modern public square.” While he acknowledged that they are indeed privately owned companies, he likened them to “the twenty-first century descendants of telegraph and telephone companies” that the government has long regulated as “common carriers.”

While the Court’s decision does not ultimately decide the matter, it is a definite win for Big Tech. The predictable dissenting justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — were surprisingly joined by Elena Kagan, although she did not join in Alito’s dissenting opinion.

Alito argued that the Court’s decision to weigh in was premature over “a ground-breaking Texas law that addresses the power of dominate social media corporations to shape public discussion of the important issues of the day.” He said that the decision to jump in before lower courts had ruled presented “a significant intrusion on state sovereignty.” Alito stressed that the justices had “not formed a definitive view” of the issue, and he argued that “it is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social-media companies.” In other words, Alito was advocating a wait-and-see approach to the novel law.

The Court’s decision overturns the decision of the Fifth Circuit Court of Appeals allowing the law to proceed.

Yet SCOTUS’s ruling appears to validate the decision made by the Eleventh Circuit Court of Appeals last week regarding a similar law passed in Florida. In that case, the court blocked the law from going into effect, ruling that big social media companies are “private entities” and therefore “decisions about whether, to what extent, and in what manner to disseminate third-party-created content to the public are editorial judgments protected by the First Amendment.”

Furthermore, the Eleventh Circuit made it clear that it viewed the social media platforms as publishers rather than public squares. This, of course, has been the rub of the whole debate and where the issue of Section 230 of the Communications Decency Act comes into play. As we have long argued, Big Tech hides behind Section 230 protections as merely content providers, while at the same time acting like publishers. This is in order to avoid being held liable for the content presented on their platforms, all while wielding the power of a publisher to censor content they don’t want posted.

So, while this is indeed a win for Big Tech, hopefully it is only a temporary one and the routine infringement on Americans’ free speech rights will be eventually rectified.

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