As the battle over freedom of speech on social media platforms rages in the court of public opinion, actual courts have in recent days grappled with applying the principles of our national parchment to this emerging constitutional battleground. In an emerging saga that includes a president, billion-dollar companies, and the world’s richest man, all sides are claiming the shield of the First Amendment, even if parsing its promise in the present remains an ongoing project.The Framers wrote that “Congress shall make no law” that abridges “the freedom of speech, or of the press.” While the strictures of this Amendment encompass the action of the federal government, they have become rallying cries for those on all sides of the political spectrum. A district court judge in California, James Donato, recently rejected President Trump’s contention that by permanently banning him, Twitter ran afoul of the Constitution. In doing so, the judge drew a brightline distinction, arguing that the First Amendment’s protections extend only to government actions, not to those of private companies. Judge Donato wrote, “Twitter is a private company,” and “the First Amendment applies only to governmental abridgements of speech, and not to alleged abridgements by private companies.” One exception to this rule is the doctrine of “state action,” which allows for constitutional claims when the behavior of a private company can be “fairly attributable to the State.”Mr. Trump argued that Twitter acted under the regime of “state action” because a range of Democrats called for him to be blocked from the platform. However, the court held that “Twitter acted in response to factors specific to each account, and not pursuant to a state rule of decision.” Free-speech politics make strange bedfellows. Still, there are those who believe that the sheer scale of companies like Facebook, Google, and Twitter make them more akin to utilities or public goods rather than private publishers, and would subsume them under something akin to state action. This position has led those on both the right and left to propose revoking or amending Section 230 of the Communications Decency Act, which reads, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”This provision effectively shields technology platforms from liability for content that they host. Neither subject to the Constitution’s limits on government action nor responsible for what they display, tech platforms enjoy a kind of interstitial immunity. They are eager to maintain this privileged position. Mr. Trump’s court case could soon be moot, as Twitter’s potential owner, Elon Musk, has said that he would greenlight the 45th president’s return to the platform, calling the ban “morally wrong.” For his part, Mr. Trump has vowed not to return, and to instead remain on his own platform, Truth Social.Even as Mr. Trump claimed that his free-speech rights had been abrogated, tech platforms are making the very same argument. In a late night petition to the Supreme Court’s emergency docket, Netchoice and Computer and Communications Industry Association, two technology lobbying groups, asked the Nine to block a Texas law, H.B. 20, that banned the platforms from establishing rules for content moderation.Netchoice describes its companies as “leaders of free expression” and expresses the hope that “the courts will work to uphold our First Amendment, while adhering to the principles laid down by America’s founders.” It is an ardent defender of Section 230. H.B. 20 asserts that Texas “has a fundamental interest in protecting the free exchange of ideas” and that “social media platforms function as common carriers by virtue of their market dominance,” thus subjecting them to increased scrutiny. It bans technology platforms from imposing content moderation policies.In the words of the petitioners representing these platforms, however, the Texas law — whose enforcement was stayed by a district court, only to be allowed to proceed via a one-sentence ruling by the United States Court of Appeals for the Fifth Circuit — “prohibits covered social media platforms from engaging in any viewpoint-based editorial discretion.”In arguing for a stay of H.B. 20, Netchoice and CIAA assert that the Texas law violates “bedrock principles of the First Amendment” and the court’s recognition “that private entities have the right under the First Amendment to determine whether and how to disseminate speech.”By requesting a restoration of “the decades-old status quo of online speech free of government interference,” the lobbyists are making a somewhat counterintuitive argument — that the protections of the First Amendment give them the right to curtail the speech of their users. Specifically, Netchoice and CCIA cite “objectionable viewpoints” that websites would have to allow, like “Russia’s propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted,” and “neo-Nazi or KKK screeds denying or supporting the Holocaust.” Even as Mr. Musk labels Twitter a “digital town square where matters vital to the future of humanity are debated,” key players in the social media ecosystem he threatens to upend appear likely to continue to flock to courts to make their cases.As briefs get written and legal citations compiled, the matter of free speech and social media will continue to be debated in a more raucous fashion. A conservative group, Project Veritas, released a recording on Tuesday of a senior Twitter engineer claiming that “Twitter does not believe in free speech,” and that many employees are dead set against Mr. Musk’s takeover. The world’s richest man has called himself a “free speech absolutist.”
