Should the online platform Substack be allowed to ban Nazis? Not should it ban Nazis. But should it be legally allowed to ban Nazis?
I’m asking on behalf of nine justices of the Supreme Court, not to mention the billions of people who use the internet. On Monday, the court heard oral arguments in two cases, NetChoice v. Paxton and Moody v. NetChoice, that could dramatically reshape online speech by determining whether the First Amendment protects the content moderation decisions of social media platforms.
At issue in the cases are two state laws — one from Florida and one from Texas — that constrain online content moderation decisions. Roughly speaking, the Florida law prohibits social media companies from permanently banning politicians and “journalistic enterprises,” while the Texas law prohibits them from banning users on the basis of viewpoint.
That means, for example, that the Florida law would prohibit a platform from permanently banning a politician running for office in the state as a literal Nazi. The Texas law would bar a platform from banning pro-Nazi speech as long as it allowed anti-Nazi speech.
In addition to impacting online speech, the NetChoice cases could reshape First Amendment law in ways that matter to the press. Based on Monday’s argument, journalists should watch the court’s decisions for two things: First, to see if the court limits the ability to challenge laws that violate First Amendment rights as facially invalid, that is, unconstitutional in all circumstances; and second, how it treats a landmark press freedom decision, Miami Herald v. Tornillo.
First Amendment faceoff
Several justices unexpectedly raised a legal issue during Monday’s arguments — about the plaintiff’s “facial” challenge to the Florida law — that could have implications for the press.
In a facial challenge, a plaintiff argues that a law can never be applied in a way that is constitutional. But the justices asked whether the Florida law might have some applications that are actually constitutional. If so, the justices asked, should the court reject the plaintiff’s claim and require it to bring an “as-applied” challenge, arguing that the law is unconstitutional in more specific ways?
The problem with that is that it’s easy to think of potential constitutional applications of broad and ambiguous laws, precisely because no one understands exactly what they mean.
A decision rewarding bad statutory drafting by allowing otherwise unconstitutional laws to survive based on hypothetical scenarios could, as the lawyer for the platforms argued, be “the worst First Amendment case in this Court's history.” It would allow legislatures to put one constitutional provision in an otherwise totally unconstitutional law and avoid having the law struck down wholesale.
For example, an Oklahoma lawmaker recently proposed a totally unconstitutional law that would require journalists to be licensed and subjected to criminal background tests and drug tests. There’s nothing constitutional about this bill. But a more shrewd lawmaker in a state intent on harming the press could cause mischief by writing ambiguous and possibly constitutional provisions into an otherwise completely unconstitutional bill, just to make it harder for courts to strike it down. Imagine, for instance, that the Oklahoma law required drug testing not just for reporters and editors, but also for delivery truck drivers.
It’s not clear if the court plans to go down this road in its decisions in NetChoice. But based on the questions at oral argument, journalists should at least be concerned that the court may be thinking about creating barriers to First Amendment facial challenges that could impact cases involving the press in the future.
Press precedent holds up
In contrast, journalists can be reassured by the court’s treatment during Monday’s argument of Miami Herald v. Tornillo. In Tornillo, the court held that the First Amendment protects newspapers’ choices about what to publish or not publish, also known as the exercise of editorial discretion or judgment. In the NetChoice cases, the social media platforms argue that their content moderation decisions are the exercise of editorial discretion and therefore protected by the First Amendment.
It may seem odd for the platforms to rely on a press freedom decision to make their case before a Supreme Court that talks about the news media in increasingly hostile terms. But thankfully, most discussion of Tornillo during Monday’s oral argument was positive. Justices Kavanaugh and Barrett, in particular, returned again and again to the First Amendment’s protections for the editorial discretion exercised by news outlets. Even justices that seemed hostile to the social media companies, like Justice Alito, seemed to accept that the First Amendment protects newspapers’ editorial judgments.
However, the devil may be in the details of whatever opinion the court ultimately writes. Even if the court applies Tornillo to content moderation, there’s a risk that it could weaken the First Amendment protection for editorial discretion by saying that the government has to meet only a low or middling burden to overcome it. There’s no specific indication from the oral argument that the court plans to do that, but journalists should watch out for any tinkering with Tornillo in the court’s decisions here.
Whatever the outcome of the NetChoice cases, states will almost certainly persist in trying to punish social media companies for hosting content that lawmakers dislike. Journalists should be wary. While social media is the political punching bag for now, there are plenty of politicians who want to go after the press using similar legal theories and complaints. If First Amendment precedent falls in social media cases, it will make it easier for lawmakers to target journalists next.
