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Texas Blew It In Big Tech Case Before The Supreme Court

The justices seemed convinced that Texas was infringing on tech companies’ First Amendment ‘right’ to exercise editorial judgment.


With all the hubbub over the Trump-related cases headed to the Supreme Court this term, many people overlooked the arguments that took place last week in two cases filed by a tech industry group against laws that were designed to protect people from online censorship.

The cases — called NetChoice v. Moody (the Florida case) and NetChoice v. Paxton (the Texas one) — involve similar statutes enacted by the overwhelmingly Republican legislatures of Florida and Texas and signed into law by two Republican governors. The Texas law is much narrower than the Florida law. That likely played a role in the Fifth Circuit Court of Appeals’ opinion upholding it, while the 11th Circuit Court of Appeals struck down the Florida law.

But that distinction went missing in the nearly 90-minute argument that occurred at the Supreme Court last week. Instead, NetChoice attorney Paul Clement seemed to have the justices convinced that Texas was infringing on tech companies’ First Amendment right to exercise editorial judgment when they decide what content to allow on their platforms. 

Clement deserves credit. He is the finest Supreme Court advocate of his generation. And his argument in the NetChoice cases — he argued both — bore all the hallmarks of his advocacy, including a dry sense of humor and a deep personal familiarity with the justices that allowed him to skate with arguments that others would never get away with, such as when he said the only thing the tech companies want to eliminate from their platforms is the “bad stuff” (whatever that means).

The justices missed several opportunities to hammer Clement, though they took his clients to task for claiming the broad rights of publishers while disclaiming any of the responsibilities that publishers have, namely, liability for the content they publish. That is a major flaw in the tech companies’ logic, and it is undermined by what Congress said in enacting Section 230 of the Communications Decency Act of 1996: that tech companies who merely host the speech of others are not publishers and thus cannot be held liable for such content.

But Texas Solicitor General Aaron Nielson also missed several opportunities. Most importantly, he overlooked the fact that Texas enacted its law to promote speech. States have a long history of doing that. As First Amendment scholar Genevieve Lakier has pointed out, “local, state, and federal legislators have over the course of the past two centuries enacted hundreds, perhaps even thousands, of laws that are intended to protect the same values and interests that the First Amendment protects.” She explained — critically — that these laws did so “not by simply enforcing the speech rights and speech facilitating duties that the First Amendment requires, but by granting rights and imposing duties that the First Amendment does not require, or by intervening in the speech marketplace in other ways not mandated by the First Amendment cases.”

Relevant Case Promoting Free Speech

The Supreme Court has upheld such legislation before, most notably in PruneYard Shopping Center v. Robins (a decision dear to me, as a California lawyer and a Bay Area native who as a kid used to visit the PruneYard, a large shopping center located near Stanford University). In PruneYard, the California Supreme Court found that the California Constitution granted people the right to engage in speech on certain privately owned property (in that case, a shopping mall). The shopping center owner said that violated its own rights, including its First Amendment rights. Its petition to the Supreme Court was based, at least in part, on the same arguments as the NetChoice cases: “that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.”

The Supreme Court disagreed. It noted that the shopping center was “a business establishment that is open to the public to come and go as they please.” It also explained that the offending viewpoints were “not likely to be identified with those of the owner” and that no “specific message is dictated by the State to be displayed on appellants’ property. There consequently is no danger of governmental discrimination for or against a particular message.” Most importantly, the court emphasized that the shopping center could “expressly disavow any connection with the message by simply posting signs in the area where the speakers stand. Such signs, for example, could disclaim any sponsorship of the message and could explain that the persons are communicating their own messages by virtue of state law.”

Texas should have said the same thing. Although California has never extended the PruneYard doctrine beyond privately owned shopping centers — places that, between the 1970s and the 1990s, were the equivalent of the town square — it could do so with social media platforms such as Twitter, Facebook, and YouTube that now serve as the primary place for people to gather and discuss the issues of the day. Texas essentially did do that. And, like California in PruneYard, it did so to promote speech, not to chill it.

Another Missed Opportunity

That reflects another missed opportunity for Texas: Clement’s repeated argument that the Texas law would interfere with tech companies’ editorial function and therefore, by definition, chill speech. Tech companies often cite these editorial functions. But as I have written elsewhere in these pages, before 2014, tech companies did not engage in any such editorial decisions. They screened for obscene content but nothing else. And, until 2018, they did little substantive content moderation after the fact, focusing instead on removing violent content like videos of beheadings (which I think we all agree can and should be banned).

In fact, it is the tech companies, not states like Texas, that are chilling speech. We see that plainly in cases like the one I am litigating for presidential candidate Robert F. Kennedy Jr. Google has removed video of Kennedy’s political speeches from YouTube — including his pre-announcement speech at Saint Anselm College in New Hampshire — because they contain “misinformation.” But what is “misinformation”? According to Google, it is speech that either Google or the federal government does not like. In other words, it is dissent. But, of course, America has a proud history of promoting dissent. Silencing dissent is inconsistent with American values.

That’s where Clement’s argument falls short. At root, he believes that private property rights trump Americans’ right to free speech. He may have Chief Justice John Roberts and Justice Brett Kavanaugh in his pocket. But he is wrong. I am not the first to say so. Five years ago, in Manhattan Community Access Corporation v. Halleck, the Supreme Court’s four liberal justices said: “The right to convey expressive content using someone else’s physical infrastructure is not new.” They were on the pro-speech side of that case. They should be on the pro-speech side this time. But they may not be. After all, this is Texas, the place Democrats go to die.

And that’s Texas’ biggest missed opportunity. Liberal judges and scholars have long used state law to promote free speech, correctly viewing it as the best vessel for American advancement. Supreme Court Justice William Brennan believed that. So did his colleague Thurgood Marshall. In fact, in Pacific Gas & Electric Company v. Public Utilities Commission of California, Justice Marshall said he believed that if a private company like PG&E were “to use its billing envelopes as a sort of community billboard, regularly carrying the messages of third parties, its desire to exclude a particular speaker would be deserving of lesser solicitude.”

The same is true here. Clement may have focused on terrorists and sexual predators in his discussion of the “bad stuff” that tech companies want to block from their platforms. But that is not what drove Texas and Florida to pass their laws. Those laws were driven by the censoring of people like Kennedy, government dissidents whom the corporate media regularly ignore and who must use social media platforms like YouTube, Twitter, and Facebook to reach people.

Nielson should have mentioned that. Instead, he ceded the moral high ground that he should have died on. And that does not bode well for free speech in America.

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