Last week, the Supreme Court considered the critical question of how to analyze neutral government regulations of social media. Well, kind of. They did hear about two very different new laws in Florida and Texas that would limit how social media companies can operate. But during the four-and-a-half-hour legal argument, the Justices seemed to awaken, with some discomfort, to the fact that these cases did not comprise one question, but a vast universe of questions. Does Uber have a First Amendment right to refuse to pick up a journalist whose political views it dislikes? Can Instagram ban Catholics? What’s the difference between a conference call on WhatsApp and a one-to-one WhatsApp chat for purposes of Meta’s alleged right to censor? What does Section 230 mean, anyway, and what part of this case goes away once that question is resolved?
Justice Kavanaugh, a reliable opponent of public regulation, seemed almost gleeful at the opportunity to make a broad decision, strongly hinting that this case could deal a death blow to future attempts to enact Network Neutrality. At one point, he even invoked Buckley v. Valeo, the ultimate sweeping, premature, facial invalidation, which granted corporations first amendment rights on broad theoretical grounds. From his perspective, the issues confronting the Court were straightforward: Money is speech, tech platforms are newspapers, why bother with the facts, let’s get on with it!
But other Justices, most notably Justice Jackson, kept pushing the advocates on the appropriateness of deciding so many critical issues in the context of a facial challenge, without any real facts to analyze. She and Justice Alito noted repeatedly that nobody seemed to know what entities would be covered by the laws, or what functions of those entities would be covered. This reticence offers at least some reason for hope. As does the fact that the Justices have recently made a pastime of taking big cases in order to avoid deciding them. Usually, I find this annoying, because it unprofitably eats up the scarce resource of the Supreme Court docket, and it wastes the substantial energy of legal advocates for naught. In this case, however, I hope they lean into their avoidance skills, and embrace one of the many ways not to decide the issues they took on cert. They should wait, as Justice Jackson intimated, for as-applied challenges.
The Anti-Democratic Danger
One reason the Justices should proceed with caution is that these cases fundamentally implicate democracy. In recent years the First Amendment has become a powerful anti-democratic corporate tool for striking down economic and election regulations. Across a growing list of cases, the Court has used the First Amendment to tie the hands of lawmakers by finding corporate speech rights in the right to hear and the religious freedom of the owners. Think Burwell v. Hobby Lobby Stores, Inc. (2014) Citizens United v. FEC (2010) Zubik v. Burwell (2016), Friedrichs v. California Teachers Association (2016), Harris v. Quinn (2014), McCutcheon v. FEC (2014), and Sorrell v. IMS Health Inc. (2011), to name a few. For good reason, liberals and progressives have compared these cases to Lochner v. New York (1905), arguing that contemporary employment of the First Amendment is being used to resurrect the economically libertarian substantive due process doctrines of the early twentieth century.
If Kavanaugh gets his way, the Court will travel further down this dangerous path, taking tech regulation out of the sphere of democratic decision-making and effectively blocking state lawmaking. Given the awesome, chokepoint power of modern tech companies, such a move would lead to the (constitutionally protected) private regulation of the de facto public sphere. These platforms already exercise their power to regulate in many ways, and they have proven dismal at it. But even if they were good at it, the difficult questions of how communications infrastructure should operate should not be left to private companies. These are foundationally public questions.
If Kavanaugh even gets half his way, and the Court settles on intermediate scrutiny, or some version thereof, we will be left with Court-driven public policy. Enabling scrutiny of any regulation that touches content moderation would effectively give the Justices the final say on nearly all platform regulation, such as, for instance, whether a rule governing AI was a good “fit” between means and ends.
Taking the full measure of the Florida and Texas laws, some are less troubled by the idea of such Court-driven public policy. These laws were written by demagogues, and while they represent a general policy I support (nondiscrimination on platforms), they are not well written to account for harms that could arise. But being a small-d democrat, and being resistant to Court takeover, means being a small-d democrat even when you don’t like the laws in question—because the transfer of power to the Court is always a general, not a case-specific, determination.
The Promise of Democratic Experimentation
The other reason for the Court to proceed with caution is that when it comes to the democratic power to regulate corporations and corporate spaces in facially neutral ways, there is a huge spectrum of laws—from public accommodations laws to common carriage to SEC rules requiring corporations to share dissident proxy materials to laws requiring malls to allow protestors they don’t like to laws requiring newspapers to carry particular responses to published views.
NetChoice would, of course, like us to think of this last category—newspaper must-carry rules—as the paradigm case, because it is the category most likely to be struck down by this Court. But we should see journalism-regulation cases as a special exception, for good reason, as opposed to defining the general category. The general category, which is better thought of as corporate spaces opened to the public, encompasses public accommodations to malls and includes the right of states to categorize particular industries as common carriers; it is also a category that until recently was broadly upheld. Newspapers are unique because of the special role that diverse and multiple publications play in enriching public information and debate and because they are, unlike all the other examples, most definitely not opening their pages to the public. They hold themselves out to be read by the public, not occupied by them.
But let’s get away from theory, as I think the Court should do, and get down to brass tacks: in the four and a half hours of argument, what was never raised were the implications of striking down these (admittedly ham-fisted) laws for other potential (much better) laws. And that is where a NetChoice win is directly dangerous to our democracy.
Consider, for instance, the Journalism Competition and Preservation Act, recently introduced by Congresswoman Jayapal and Senator Klobuchar. This law is designed to help save local reporting by, among other things, forbidding platforms from using their chokepoint power to treat news organizations differently based on their size or on the views expressed in their content. If NetChoice wins, that bill is very likely to be deemed unconstitutional, because it directly interferes with the ability of the big platforms to engage in content moderation.
Or consider several child social media laws that would forbid, in whole or part, algorithmically targeted content by big tech companies. A NetChoice win would give the tech companies a cudgel to take to these laws, because they interfere with Tiktok’s ability to put content in front of Jane Doe, age 15, in whatever order it wants.
I can’t think of much more important to our democracy than saving our newspapers, or protecting our kids from addictive feeds that are causing unheard of levels of depression and isolation. And this is just the tip of the iceberg: there will inevitably be a wide range of laws we will want to pass that we haven’t even thought of yet—laws that a broad NetChoice win will put out of reach.
As Ganesh Sitaraman recently pointed out, history teaches us that it is especially important for states to experiment with different forms of regulation of new industries that take on chokepoint roles. It is through states, trying different strategies, that we learn what actually happens, what problems arise, and how to craft exceptions (which always exist). I, for instance, think the provision of the Florida law that requires platforms to comply with their own posted terms of service is an excellent provision, but since we haven’t had a chance to experiment with it, we don’t know how it would work in practice, and are left with a debate among different paracosms. I also think that Texas’ ban on all viewpoint discrimination could prove difficult to implement, but given that Section 230 certainly protects platforms from removing content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected,” it may be easier than I think. We’d learn a lot by letting it go into effect.
This is, then, a moment for the Court to stand back and allow democracy to work its clumsy, painful magic. Democracy requires that we live with laws that each of us deplores, and demands the hard work of persuasion, connection, and reason. It requires constant experimentation and updating. In the brief filed by Letitia James, Attorney General of New York, and joined by 20 other states, James identified over 60 state laws that are directly threatened by a NetChoice win, laws addressing children’s safety, AI, antitrust, and unfair business practices. It’s a fraction of the potential laws that could be impacted. A ruling that tech companies don’t have to comply with neutral provisions would not just block two sloppy laws, it would put a block on politics itself. It would give Meta and Google and Tiktok an extraordinary deregulatory weapon, and chill the creative, public, hard-fought democratic efforts to solve the real-world problems caused by big tech.
