Supreme Court to Hear Social Media Cases on Online Speech

[Vosem]

My unpopular opinion, which I think I have voiced on this forum before for many years, is that I fail to see how social media companies having the right to moderate at all is consistent with Pruneyard Shopping Center v. Robins. Pruneyard was based on state constitutional language rather than the federal one, to be sure, but a large majority of states have similar language in their state constitutions.

There is, in fact, a lower-court decision from 2022, NetChoice v. Paxton, which agrees with me, though it's seen as kind of unlikely to be upheld by SCOTUS in its entirety and as going pretty far even by conservative-court standards. This Twitter thread -- which I am quoting in medias res because I like these particular tweets as a summary of the decision, but which is overall fairly hostile to it, but in a fair way and elucidates how radical the decision was relative to current law -- is a pretty good source about it:

https://twitter.com/glakier/status/1572226471443435528

https://twitter.com/glakier/status/1572226753510412292

[Vosem]

My unpopular opinion, which I think I have voiced on this forum before for many years, is that I fail to see how social media companies having the right to moderate at all is consistent with Pruneyard Shopping Center v. Robins.

Perhaps because Pruneyard was wrongly decided.

Deciding it the other way implies, to me, that a number of 'private right to discrimination' cases were wrongly decided and would put some of the premier Civil Rights-era decisions in jeopardy. (Pruneyard was also a 9-0 case, not some very close-run thing -- as Torie's example, Lloyd, actually was, since that was a narrowly decided 5-4 case. Though in that case it was the 4 most left-wing members in favor of a very expansive right to free speech and the 5 more right-wing members arguing against it -- oh, how the turn tables.)

Under the SCOTUS Tanner decision (which I argued in moot court in law school and won an award that you very much for my brief in favor of the mall), malls can ban speech in their hallowed halls, so I don't know what the 5th circuit is talking about, and don't want to read the decision. NJ went the opposite route under its state constitution. State constitutions with feel good clauses like freedom and equality and the right to happiness and self actualization and satisfying sex are a bane.

I don't really feel like reading the decision either since SCOTUS will have an opinion on this fairly soon, and in fact I never argued Lloyd v. Tanner in moot court, but simply perusing that one it seems like the Supreme Court distinguished the facts from an earlier case, Marsh, having to do with company towns (ie, their argument was that in the Lloyd case that there was not a right to pass out leaflets within the mall because you could do so with equal success outside, whereas in the case of a demonstration in a company town you could not hold a demonstration that got equal attention outside the town). Based on that comparison, modern social media networks seem much more like company towns than malls -- it's not as though a banned poster gets to, like, show you a pop-up when you go to a social media site!

[Vosem]

I don't see how making social media platforms liable for what others put on them, absent perhaps specific and adequate notice in specific instances, would allow such platforms to continue to exist as an economic matter.

I don't think this is what the case is about. You could have a system where social media companies are neither liable for what others put on them nor empowered to remove offensive content (probably with carve-outs for obscenity/spam/"imminent lawless action" and other standard carve-outs, since the controversy here is primarily about political speech), absent a court order.

It is possible -- and actually, kind of likely -- that a 'conservative' victory on this question would result in a greater fracturing of the Internet along national lines. The social media regulations that Texas has introduced are simply contradictory to pan-European rules; it would not be possible for a website to follow both sets. If the US as a whole adopted Texas-style rules -- and it seems plausible if not likely that this will happen by judicial fiat -- then you would either see one side's rules ignored, or the emergence of parallel social media systems in the United States and Europe. My guess here is that the American rules would win purely because so much of the discussion on social media, even in other countries, is often about American issues, but I don't have a high level of confidence about this.

[Vosem]

I don't see how making social media platforms liable for what others put on them, absent perhaps specific and adequate notice in specific instances, would allow such platforms to continue to exist as an economic matter.

I don't think this is what the case is about. You could have a system where social media companies are neither liable for what others put on them nor empowered to remove offensive content (probably with carve-outs for obscenity/spam/"imminent lawless action" and other standard carve-outs, since the controversy here is primarily about political speech), absent a court order.

It is possible -- and actually, kind of likely -- that a 'conservative' victory on this question would result in a greater fracturing of the Internet along national lines. The social media regulations that Texas has introduced are simply contradictory to pan-European rules; it would not be possible for a website to follow both sets. If the US as a whole adopted Texas-style rules -- and it seems plausible if not likely that this will happen by judicial fiat -- then you would either see one side's rules ignored, or the emergence of parallel social media systems in the United States and Europe. My guess here is that the American rules would win purely because so much of the discussion on social media, even in other countries, is often about American issues, but I don't have a high level of confidence about this.

I really have no idea what the case is about per se, but if there are a lot of social platforms, I don't see the problem with their controlling what is on them that could fairly be called censorship. That was the rationale with cable TV, that killed off the fairness doctrine.

The issue is that there aren't a lot of platforms, and while there are attempts to create sectional clones of Twitter or Facebook (these have some success for other languages, such as VKontakte as a Russian-language clone for Facebook, but in the US attempts to create Twitter spin-offs with other rules -- such as Mastodon or Truth Social -- have invariably fallen flat), these have gone nowhere, so these websites exercise something of a monopoly on services of their type. Texas House Bill 20 attempts to introduce free-speech protections applying specifically to expression on social media sites which is similar to the protections in state constitutions that SCOTUS upheld in Pruneyard (which gave a right to demonstrate in a privately-owned place if it is used for 'social congregation').

Pruneyard suggested that states could do the thing that Texas did; Lloyd, which you brought up, is more immediately about whether there is a federally protected right to free speech in privately-owned malls (not under the circumstances in the case, but it was 5-4 and also distinguished from Marsh, about free speech in company towns, which strikes me as more similar to social media websites but then I am not unbiased here).

The case that the Supreme Court is hearing, is the following law passed by Texas (a similar one was passed by Florida, but struck down, creating a circuit split), which was summarized by the circuit court as follows:

A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on: (1) the viewpoint of the user or another person; (2) the viewpoint represented in the user’s expression or another person’s expression; or (3) a user’s geographic location in this state or any part of this state.

To connect this to politics, and 'conservative v. liberal' on this forum, both the Fifth Circuit panel I discuss here and the Eleventh Circuit panel which reached the opposite conclusion were made up of three conservative judges; the Fifth Circuit reached the 'absolutist' position (no First Amendment right to moderate content) 2-1 (Oldham, Jones v. Southwick) and the Eleventh Circuit reached the opposite conclusion 0-3 (Newsom, Tjoflat, Carnes). I think we can safely say at the Supreme Court level that the three liberals will not reach Andy Oldham's conclusion, but it's harder to say for the six conservatives.

[Vosem]

Pruneyard is sort of a weird case at the nexus of First Amendment rights and property rights. It's actually not a case I've given much attention or thought to. I think there are some major differences between that and online speech though. My understanding of Pruneyard is that private individuals cannot use the power of the state to prohibit individuals exercising free speech rights, but it does not force private individuals to make accommodations. It certainly doesn't allow individuals to place permanent fixtures (such as posters, banners, etc) in such places without consent. I'd be inclined to overrule Pruneyard or at least approach the issue in a different way.

I know some people bring up the common carrier issue, but I don't think social media platforms are common carriers. When it comes to social media platforms, the content is the central focus and entire point. That contrasts with common carriers such as your phone provider or your ISP. Those provide you with a service and generally carry content without regard to what it is. Editorial discretion is generally not within the purview of those types of companies, unlike social media. Social media is all about speech. If a private entity is all about speech, the government should remain out of the picture and silent.

Pruneyard is also not, strictly speaking, even a free-speech case: it's a preemption case regarding the extent to which free-speech is not preempted by the federal government and can be legislated/regulated by the states at all. While the vast majority of (but not all!) state constitutions have provisions similar to California's in 1980, state Supreme Courts could always choose to interpret them differently. The controlling precedents for whether speech on privately-owned social media networks can be protected under the First Amendment are Lloyd, which Torie brought up, and Marsh.