The U.S. Supreme Court this morning ordered further trial court proceedings in the NetChoice case—actually a pair of cases from Florida and Texas—that involve laws restricting the rights of social media companies such as Twitter (now called “X”) and Facebook. In the process, the court made clear that these companies have free speech rights, including the right to decide what messages they will and will not convey—a position the Goldwater Institute supported in its friend-of-the-court brief, despite the fact that Goldwater itself has experienced “censorship” from social media companies.
The Texas and Florida laws were written out of a concern that conservative messages were being unfairly blocked or stifled by these companies—and there’s good reason for that concern. Social media companies have in recent years blocked or removed content from conservative sources, even if it’s entirely innocuous. One senator was even blocked from posting on Twitter after putting up a photo from a hunting trip on the platform. But social media companies are private property, and nobody else has a right to tell them what they may or may not say, or what messages they can choose to carry or not. Just as the First Amendment forbids the government from forcing a Catholic church to hand over some pulpit time on Sunday to a Protestant preacher, or compelling National Review to publish articles by writers for Teen Vogue, so the government has no rightful power to compel Twitter or Facebook to carry a message from a conservative (or a liberal) if it doesn’t want to.
True, there’s a 1980 Supreme Court case called PruneYard that forced the owners of a shopping mall to let people on their land to gather signatures on a petition, even though the owners didn’t want to. But as we argued in our brief, PruneYard was wrongly decided, and has been largely abandoned or rejected by other courts, including those in California, where that decision originated. Just two years ago, the Supreme Court said (in another case coming out of California) that government can’t force people to let others onto their land in order to convey messages. PruneYard shouldn’t be followed—it should be overruled.
Today’s decision doesn’t go that far; the ruling by Justice Elena Kagan (joined both by the liberal justices and by Justices John Roberts, Brett Kavanaugh, and Amy Coney Barrett) simply returned the case to the trial court to gather more information and reconsider the legal issues. But it strongly suggests that the two laws are unconstitutional, because the government can’t do that. “The large social-media platforms throw out (or encumber) certain messages,” Kagan wrote. “Texas wants them kept in (and free from encumbrances), because it thinks that would create a better speech balance.” But that’s not allowed. “It is no job for government to decide what counts as the right balance of private expression—to ‘un-bias’ what it thinks biased, rather than to leave such judgments to speakers and their audiences.”
That’s important because if government is given the power to “un-bias” what it considers biased, that power will be held by politicians and bureaucrats, who are not dispassionate, objective angels—but rather biased, flawed, and politically motivated, as well as ignorant about a great many things. This is the whole argument against censorship generally: government officials cannot be trusted to decide what messages should be seen and heard (or more seen and heard than they are) because if they try to do that, they will inevitably prioritize some messages over others for illegitimate reasons.
The First Amendment doesn’t tolerate that kind of, so to speak, “affirmative action for political ideas,” not only because it would elevate some speech over others for invalid reasons, but also because—at least in the NetChoice cases—it involves violating the free speech rights of private companies that have a right not to be forced to convey ideas they don’t like. True, cases like PruneYard have said that government can block a business from making those kinds of choices if it’s a monopoly—but there is no reason at all to think Twitter and Facebook are monopolies; there is plentiful competition in social media specifically, and in media more generally.
Social media “censorship” may be frustrating, sometimes. We at the Goldwater Institute have felt that frustration. But today more than ever it’s crucial to stick fast to our fundamental constitutional principles of private property and freedom of speech. The First Amendment says that the marketplace of ideas is for people to debate—not for government to intervene and start trying to “balance” things at the cost of our, or anyone else’s, freedom of speech.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
