Multiple briefs have been filed in two critical cases, here and here, involving social media platforms (SMPs) that have taken radically different positions over the appropriate level of their First Amendment protection. In Florida (NetChoice v. Att’y Gen., Fla. (2022)), the Eleventh Circuit offered a ringing defense of the freedom of speech on the grounds that as private enterprises these SMPs enjoy a sovereign right to “curate” and “moderate” the information they publish on their sites. In sharp contrast, in Texas, the Fifth Circuit in NetChoice v. Paxton (2022) insisted that these same actions amounted to “censorship” that the state must regulate to ensure that rival views can receive full public exposure.
The origins of this deep clash were two identical statutes targeted at large SMPs—the only ones that are capable of exerting market power. Thus, Section 7 of H. B. 20 reads as follows:
A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on:
- the viewpoint of the user or another person;
- the viewpoint represented in the user’s expression or another person’s expression[.]
To set the stage, it is accepted on both sides of the controversy that the SMPs always have the power to remove from their platforms smut, obscenity, and calls for violence, just as the common carriers—most notably railroads and telephone companies—have long had the right to deny service for cause to persons who engage in these activities. They may so act, even though, as carriers, they are charged with the basic duty to take all comers for fair, reasonable, and nondiscriminatory rates (FRAND) that strip them of the ability to make a monopoly profit but allow them to charge fees sufficient to cover their costs and to make a reasonable profit. In these SMP cases, the issue of profits drops out because the relevant services are supplied for free, so the real question is whether these platforms can engage in viewpoint discrimination.
The defenders of NetChoice, a lobbying organization for large tech and social media companies, insist that both the Texas and Florida laws violate “the fundamental rule of . . . the First Amendment, that a speaker has the autonomy to choose the content of his own message.” I wrote an amicus brief for the Center for Renewing America that takes the opposite position, and urged that these regulations be held a permissible and reasonable response to the monopoly power that these SMPs wield in today’s platform economy. That power makes the earlier cases relied on by NetChoice inapposite to the new challenges today.
The proper view of a test for content neutrality depends critically on the shape of the market. If the government or a private monopolist sought to suppress the view of all other parties, there would be a serious challenge to the fundamental premise of spirited debate over matters of great social importance which lies at the heart of the First Amendment. The famous statement of Justice Oliver Wendell Holmes in Abrams v. United States (1919) that “the best test of truth is the power of the thought to get itself accepted in the competition of the market” summarizes the basic view. But that promise cannot be realized if the market has only one dominant player, or if the multiple players in the market can organize themselves by a variety of devices so that they present a united front on platform content to the rest of the world.
The cases argued by NetChoice date from 1974, 1986, and 1995—before the modern platform era—and thus they do not address this issue. The first key case is Miami Herald Publishing Co. v. Tornillo (1974), which held that “a state statute granting a political candidate a right to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees of a free press.” The logic here was that free and inexpensive entry into the market was available from multiple other sources, so that there was no reason to guarantee space on a particular platform to political candidates, or indeed to anyone else. In contrast, the Miami Herald court attributed to Associated Press v. United States (1945) the holding that the antitrust laws applied with full vigor to the press, given the risk whenever a dominant firm “hammers away on one ideological or political line using its monopoly position not to educate people, not to promote debate,” which is exactly the situation here.
Next, Pacific Gas & Electric Co. v. Public Utilities Commission of California (1986) raised the prosaic question of whether the PUC could force PG&E to carry messages in the “extra space” in its billing envelopes. The Supreme Court found a violation of the First Amendment because of compelled speech, and found that under the Board of Utility Commissions v. New York Telephone Company (1926), the public did not own the assets of PG&E. They were not part owners of the firm, but mere customers who “pay for service, not for the property used to render it.” No risk of monopoly stemmed from PG&E’s use of its own property.
Last, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995), the South Boston Allied War Veterans Council was not required to allow the GLIB group to march under its own banner in its St. Patrick’s Day Parade, because the parade organizers were under no duty “to include among the marchers a group imparting a message the organizers d[id] not wish to convey.” The control of one’s own parade is no exercise of monopoly power, especially since the excluded groups have an equal right to run their own parade on public property.
The issue of monopoly power surges to the fore in three separate ways in the NetChoice cases. The first is through the exertion of “network effects,” which effectively mean that new consumers tend to flock to an established network where they can maximize their number of contacts. Accordingly, dominant players like Amazon, X (Twitter), Google, and Apple have a powerful first mover advance that helps cement this dominant position—until some other new entrant displaces them to enjoy the benefit of these network effects itself. Smaller companies with divergent view are thus consigned to the fringe, where they do not provide a credible offer of a reply that reaches the same audience as the dominant carrier.
The situation is even worse because the operation of a minor network depends critically on its ability to operate at all on the connection that it receives from these key operators: Amazon Web Services, Apple Web Services, and Google Cloud Web Hosting. Yet these large services can cut off their back-end support, putting them out of business. The conservative social media platform Parler was gaining customers until the events of January 6, 2021, when it was cut off from all three enterprises without notice, on the ground that it facilitated violence. The three web services acted in parallel and may well have consulted with each other on key decisions. The new environment bears no resemblance to the lone voice of the Miami Herald. No one knows whether they applied consistent policies to other groups, or why they imposed a maximum sanction on this occasion. But it was hardly the case that all parties on Parler engaged in violence, so these decisions look like the naked efforts of dominant platforms to revoke the public access from their political opponents. That risk is so great that no new entrant has sought to occupy Parler’s market niche.
That inference is, moreover, virtually inescapable in light of the extensive revelations in Missouri v. Biden (2022). This action was brought by, among others, two prominent COVID-19 researchers, Jay Bhattacharya of Stanford and Martin Kulldorff, on leave from Harvard University, whose access to social media platforms was blocked in large measure because of the interventions of federal officials who used a combination of coercion and threats to prevent them from spreading “misinformation” to the public by contesting federal policies about quarantines, masks, and vaccines. The officials threatened this adverse government action even though the criticized policies had the possibility of causing immense harm as well as providing great benefits. It is wholly proper for the government to speak its own mind in defense of such policies, but utterly indefensible for it to violate the Holmes maxim in Abrams by suppressing positions that oppose it, thereby showing the dangers of government monopoly.
People should be allowed to make up their own minds, which is why statutes like Texas’s H. B. 20 expand discussion by defending the right to reply against today’s social media platforms, whose abuse of monopoly power is wrongly aided and abetted by the federal government.
