When Free Speech Rights Collide

Gun Rights

In the days following the January 6, 2021, attack on the U.S. Capitol instigated by then President Donald Trump, the social media sites Facebook and Twitter decided enough was enough and (temporarily) shut down his accounts, which were teeming with incendiary rhetoric and disinformation. Trump’s followers set out to make sure that nothing of the sort happens again.

Later that year, Texas and Florida both passed laws to make it harder for Internet platforms to keep dangerous lunatics from posting whatever they want, no matter how vile or mendacious it may be. The laws forbid certain kinds of content moderation while requiring companies including Facebook (aka Meta), X (formerly Twitter), Google (the owner of YouTube), and TikTok to notify users whenever they remove or alter a post.

Officials in these states say they are taking action to prevent social media outlets from discriminating against disfavored points of view. In signing his state’s bill in September 2021, the Republican governor of Texas, Greg Abbott, declared, “There is a dangerous movement by some social media companies to silence conservative ideas and values. This is wrong and we will not allow it in Texas.”

Trade associations for the companies sued in response, insisting on their right to remove content that violates their policies and befouls their sites. Absent this, they warned, “platforms will become havens of the vilest expression imaginable: pro-Nazi speech, hostile foreign government propaganda, pro-terrorist-organization speech, and countless more examples.”

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The implementation of both laws has been put on hold pending the resolution of these legal challenges, which are now before the U.S. Supreme Court. Oral arguments in these cases—Moody v. NetChoice, LLC in Florida and NetChoice, LLC v. Paxton in Texas—were heard in a marathon four-hour session in late February. The Justices seemed skeptical of the laws’ vast prohibition on content moderation.

“This is so, so broad, it’s covering almost everything,” liberal Justice Sonia Sotomayor said of Florida’s law, speculating that its reach could extend far beyond social media to include such Internet-based companies as Etsy and Uber. Meanwhile, conservative Chief Justice John Roberts noted that the First Amendment bars the government—not private entities—from censoring speech.

At the heart of these cases is a key question: Are social media platforms more like newspapers and magazines—free to decide what they publish, down to the last comma—or more like telecommunications companies, which are required to transmit everyone’s messages? The proponents of the Florida and Texas laws deem them the latter.

“Social media websites are a modern-day public square,” a spokesperson for Abbott told The Texas Tribune. “They are a place for healthy debate where information should be able to flow freely—but there is a dangerous movement by social media companies to silence conservative viewpoints and ideas.”

As the television news program 60 Minutes recently reported, these “silenced” points of view include the blatantly false claims by U.S. Representative Marjorie Taylor Greene, Republican of Georgia, that COVID-19 vaccines don’t work and are killing “extremely high amounts” of people, which got her briefly booted from Twitter.

Of course, such talk would encounter little resistance from the platform’s current owner, billionaire Elon Musk, who changed its name to X and fired most of its fact-checkers. (“The site,” 60 Minutes observed, “is now rife with trash talk and lies.” Who knew?) But officials in Florida and Texas want to turn Musk’s dereliction of duty into a duty to be derelict. They say social media sites have no right to remove disinformation, no matter how badly it might damage their reputation and viability. This is the epitome of an unfree market.

Whose right to speak should prevail?

The Justices, during oral arguments, pretty clearly signaled that they would not go along with this. But they also seemed reticent to embrace the notion that the government has no authority to regulate how social media companies do business. James Grimmelmann, a professor of digital and information law at Cornell Law School, said he believes that the court “recognizes the problems with a sweeping ruling for either side.”

One possible outcome might be to continue allowing social media companies to remove content but require them to more fully disclose their policies and practices. U.S. Solicitor General Elizabeth Prelogar, representing the Biden Administration, embraced this view. (Trump’s team filed a brief supporting Florida’s law.)

“I want to be very clear that we are not suggesting that governments are powerless,” Prelogar told the court. “One natural place to go is disclosure, to ensure that if you think a platform has Orwellian policies, you at least make sure users have information about how they are acting, what their policies are.”

The Florida and Texas laws are among a handful of recent cases in which the Supreme Court is being called upon to adjudicate conflicting assertions of First Amendment rights, often involving social media.

In mid-March, a unanimous ruling limited the ability of government officials to selectively block users from commenting on their private social media accounts when those accounts are used for public purposes. It is now weighing two other cases that could profoundly affect the ability of government officials to weigh in on matters of public importance, just as the nation heads into an election in which the intentional dissemination of disinformation could play a key role.

Decisions in all of these pending cases are expected by the end of June.

One of the cases, which I discussed in The Progressive’s October/November 2023 issue, concerns whether the government has the right to notify social media platforms that certain posted content is false. In this case, now known as Murthy v. Missouri, a Trump-appointed federal judge in Louisiana ruled—and the conservative Fifth Circuit Court of Appeals agreed—that this violated the First Amendment, even though the companies are free to ignore this input.

During oral arguments on March 18, a majority of the Supreme Court Justices appeared to give these rulings a cold reception. Conservative Justice Brett Kavanaugh and Chief Justice Roberts seemed to agree with the court’s liberals that government attempts to influence the thinking and conduct of others were not prohibited by the First Amendment.

Kavanaugh, a former White House lawyer, said he knew from personal experience that “government press people throughout the federal government . . . regularly call up the media and berate them.” Liberal Justice Elena Kagan, in turn, shared that she has had “some experience encouraging the press to suppress their own speech.” Such feedback, she said, “happens literally thousands of times a day in the federal government.”

Roberts, in a rare display of wit, asserted that he had “no experience coercing anybody” while agreeing that government officials are allowed to hold and express contrary views.

On the same day, the Supreme Court also heard oral arguments in a case known as National Rifle Association of America v. Vullo, which concerns whether a New York State official violated the free speech rights of the NRA when she urged banks and insurers to cut ties with the gun-rights group. In that case, the court seemed poised to side with—you guessed it—the NRA.

That’s in part because the court is accustomed to licking the boots of the gun lobby and in part because the NRA’s position is getting support from what may seem to be a surprising quarter: the American Civil Liberties Union.

In Murthy v. Missouri, the government is asserting the right to say, for instance, “That post about how the COVID-19 vaccines are killing lots of people is factually incorrect, and you may want to think about taking it down,” but not, “We are ordering you to take it down or else.” In NRA v. Vullo, the issue is whether the actions of the government amounted to the delivery of an “or else.”

The NRA and the ACLU contend that the state official, Maria T. Vullo, then superintendent of the New York State Department of Financial Services, set out not to disagree with the NRA but to punish it for “political speech.” David Cole, the ACLU’s legal director, has said Vullo crossed a line and abused her power: “If New York can do this to the NRA, Texas or Florida could use the same tactics against groups advocating immigrants’ rights, the right to abortion, or other vital civil liberties.”

In a filing with the court, Vullo’s lawyers argue that she has every right to say the NRA posed “a serious and unique risk to public safety” so long as the group was not prevented from saying whatever it wished. “The NRA has never claimed, much less plausibly so, that it was unable to exercise its speech rights,” the lawyers wrote. They say a ruling against Vullo would chill other government officials from making critical comments that could be “recast as retaliation.”

Whose right to speak should prevail? It is not an easy question.

Editor’s note: On May 30, after the print version of this column was published, the Supreme Court unanimously ruled in favor of the NRA, allowing its lawsuit against Vullo to proceed in the lower courts. Justice Sonia Sotomayor, writing for the court, declared that while a government official may “share her views freely and criticize particular beliefs,” that official cannot “use the power of the state to punish or suppress disfavored expression.”

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