Social Media Platforms Resist Regulation as Electronic Public Squares, Seeking U.S. Supreme Court Intervention in Ongoing Federal Appellate Litigation Against Texas

Netchoice, LLC and Computer and Communications Industry Association v. Ken Paxton, Attorney General of Texas, No. 21A720 (U.S. Supreme Court). Emergency Application filed May 13, 2022


When the state of Texas passed legislation that would limit the ability of internet social media sites such as Facebook, Twitter, YouTube and others to remove or to ban content the sites deemed undesirable or outside the private companies’ internal rules and user agreements, those companies immediately sought to enjoin the legislation, arguing that Texas’s bill violates the corporations First Amendment rights, including but not limited to exercising editorial discretion over content provided by others. 

The associations advocating for the social media sites successfully obtained an injunction halting the operation of the Texas law.  Recently the United States Court of Appeals, without issuing an opinion detailing its reasoning, stayed the operation of the injunction, prompting the associations to seek the United States’ Supreme Court’s intervention to vacate the appellate court’s order.

Texas, by its Attorney General, observes that the massive online presences of social media sites has caused them to become modern public squares and, as such, when a site its open to some views, it must be open to all.  Alternatively, Texas asserts that the platforms’ conduct may be regulated much as the conduct of common carries is, and that it is not speech but the act of removal of content or banning of posts or accounts that is open to statutory intervention without concern for the First Amendment. 

Social media sites strenuously resist being required to offer appeals from removal of content or banning of accounts, and complain that that reporting requirements imposed by Texas are overwhelming.  The companies state that compliance with Texas’s regime would be prohibitively costly and would require remaking of the corporations business methods, actions which would take a decade to accomplish.

The sites are extremely concerned because active operation of the Texas legislation will impact all operations throughout the United States. 

The petitioning associations enjoy the support of more than a dozen industry-related entities, First Amendment advocates, and others with interest in online activity.

Texas, by comparison, is supported by other states and a few critical voices.

The timing of issuance of a decision on the emergency petition, addressed to Justice Alito as justice for the Fifth Circuit, but in light of the stringent briefing deadline imposed on the parties, it may be that a decision will be forthcoming very soon.

The legislation in issue:

Text of Texas H.B. 20

The emergency petition, Texas’s opposition, and petitioners’ reply:

21A720 Supreme Court Vacatur Application

21A720 Response to Application

21A720 Reply in Support of Emergency Application

Amicus Submissions for Applicants:

21A720 Amicus Brief of Christopher Cox

21A270 Amicus Brief of Reporters Committee for Freedom of the Press, et al.

21A720 Amicus Brief of Professor Eric Goldman

21A720 Amicus Brief of Floor64 d/b/a/Copia Institute

21A720 Amicus Brief of Center for Democracy and Technology, et al.

21A720 Amicus Brief of TechFreedom

21A720 Amicus Brief of Chamber of Progress, et al.

21A720 Amicus Brief of The Cato Institute

Amicus Submissions for Respondent:

21A720 Amicus Brief of Philip Hamburger, et al.

21A720 Amicus Brief of Florida and 11 Other States

 

 

 

 

 

 

 

 

Funny Things Have Happened on the Way to the Fora: Justice Thomas Proffers Adapting Common Carrier Law to Digital Media to Address Speech Concerns

Biden v. Knight First Amendment Institute at Columbia University, No. 20-197 (April 5, 2021).


Former President Trump petitioned the U.S. Supreme Court for certiorari review of a decision of the U.S. Court of Appeals for the Second Circuit which held that his use of his personal Twitter account, @realDonaldTrump for administration messages made the account a public space.  As such, the former president could not block others’ or their responses without violating the First Amendment. 

 

In view of the change in presidents, the Supreme Court granted the petition but remanded it to the Second Circuit to vacate its opinion and dismiss the case as moot.

 

While in agreement with the Court’s determination, Justice Thomas has written separately that subsequent events and a more careful analysis of the balance of powers between digital media platforms and its users calls into question the applicability of First Amendment analysis.  

 

Justice Thomas is of the view that the time has arrived for a close look at digital platforms, particularly where it now appears that extraordinarily broad powers reside in the hands of a few individuals and entities that control the internet. 

 

Twitter banned former President Trump from its platform, which Twitter may do, according to Twitter’s rules of use, for any reason or for no reason.  This, in Justice Thomas’ view, highlights how extensive the digital platforms’ powers are.  It is less readily apparent that an individual has created a public forum, traditionally defined as a ‘“government controlled” space, when a private individual or entity can unilaterally deny access to its digital platform.

 

If First Amendment analyses become an uneasy — if not wholly inappropriate — fit in such circumstances, Justice Thomas has suggested that resort to the common law and subsequent developments concerning regulation of common carriers may present opportunities for legislative action.  Where common carriers such as communications and transportation entities receive special privileges as a result of government regulation, they also must, as a result, adopt responsibilities, including limitations on a private entitiy’s rights of exclusion such that common carriers must treat clients and customers equally.  While market power has traditionally been a part of common carrier analyses, it is not a determining factor:  entities of differing sizes and contours may be “common carriers” responsible for transport, whether on highways or rails or telephone wires or otherwise.  



This framework, grounded in common carrier constructs as well as civil rights concepts applicable to public accommodations, might offer an opportunity to make inroads in the nation’s understanding of how best to adapt the law to the digital area. Perhaps best of all, Justice Thomas has observed, this approach could aid all concerned without requiring that digital platforms sacrifice their own First Amendment rights or be perceived to have endorsed any of the speech presented on its platforms.  


Supreme Court Determination 

20-197 Biden v. Knight First Amendment Institute at Columbia Univ. (04_05_2021)

Second Circuit Decision Regarding Rehearing en banc:

Knight First Amendment Inst at Columbia Univ v Trump 953 F3d 216 Mem 2nd Cir 2020

Second Circuit Decision on Appeal:

Knight First Amendment Inst At Columbia Univ v Trump 928 F3d 226 2nd Cir 2019

Opinion of the United States District Court

Knight First Amendment Inst At Columbia Univ v Trump 302 F Supp 3d 541 SD NY 2018