In the aftermath of the January 6 attack on the U.S. Capitol, both Facebook and Twitter decided to suspend lame-duck President Donald Trump from their platforms. He had encouraged violence, the sites reasoned; the megaphone was taken away, albeit temporarily. To many Americans horrified by the attack, the decisions were a relief. But for some conservatives, it marked an escalation in a different kind of assault: It was, to them, a clear sign of Big Tech’s anti-conservative bias.
That same year, Florida and Texas passed bills to restrict social-media platforms’ ability to take down certain kinds of content. (Each is described in this congressional briefing.) In particular, they intend to make political “deplatforming” illegal, a move that would have ostensibly prevented the removal of Trump from Facebook and Twitter. The constitutionality of these laws has since been challenged in lawsuits—the tech platforms maintain that they have a First Amendment right to moderate content posted by their users. As the separate cases wound their way through the court system, federal judges (all of whom were nominated by Republican presidents) were divided on the laws’ legality. And now they’re going to the Supreme Court.
On Friday, the Court announced it would be putting these cases on its docket. The resulting decisions could be profound: “This would be—I think this is without exaggeration—the most important Supreme Court case ever when it comes to the internet,” Alan Rozenshtein, a law professor at the University of Minnesota and a senior editor at Lawfare, told me. At stake are tricky questions about how the First Amendment should apply in an age of giant, powerful social-media platforms. Right now, these platforms have the right to moderate the posts that appear on them; they can, for instance, ban someone for hate speech at their own discretion. Restricting their ability to pull down posts would cause, as Rozenshtein put it, “a mess.” The decisions could reshape online expression as we currently know it.
Whether or not these particular laws are struck down is not what’s actually important here, Rozenshtein argues. “What’s much, much more important is what the Court says in striking down those laws—how the Court describes the First Amendment protections.” Whatever they decide will set legal precedents for how we think about free speech when so much of our lives take place on the web. Rozenshtein and I caught up on the phone to discuss why these cases are so interesting—and why the decision might not fall cleanly along political lines.
Our conversation has been condensed and edited for clarity.
Caroline Mimbs Nyce: How did we get here?
Alan Rozenshtein: If you ask the companies and digital-civil-society folks, we got here because the crazy MAGA Republicans need something to do with their days, and they don’t have any actual policy proposals. So they just engage in culture-war politics, and they have fastened on Silicon Valley social-media companies as the latest boogeyman. If you ask conservatives, they’re going to say, “Big Tech is running amok. The liberals have been warning us about unchecked corporate power for years, and maybe they had a point.” This really came to a head when, in the wake of the January 6 attack on the Capitol, major social-media platforms threw Donald Trump, the president of the United States, off of their platforms.
Nyce: Based on what we know about the Court, do we have any theories about how they’re going to rule?
Rozenshtein: I do think it is very likely that the Texas law will be struck down. It is very broad and almost impossible to implement. But I think there will be some votes to uphold the Florida law. There may be votes from the conservatives, especially Justices Samuel Alito and Clarence Thomas, but you might also get some support from some folks on the left, in particular Justices Ketanji Brown Jackson and Sonia Sotomayor—not because they believe conservatives are being discriminated against, but because they themselves have a lot of skepticism of private power and big companies.
But what’s actually important is not whether these laws are struck down or not. What’s much, much more important is what the Court says in striking down those laws—how the Court describes the First Amendment protections.
Nyce: What are the important things for Americans to consider at this moment?
Rozenshtein: This would be—I think this is without exaggeration—the most important Supreme Court case ever when it comes to the internet.
The Supreme Court in 1997 issued a very famous case called Reno v. ACLU. And this was a constitutional case about what was called the Communications Decency Act. This was a law that purported to impose criminal penalties on internet companies and platforms that transmitted indecent content to minors. So this is part of the big internet-pornography scare of the mid-’90s. The Court said this violates the First Amendment, because to comply with this law, platforms are going to have to censor massive, massive, massive amounts of information. And that’s really bad. And Reno v. ACLU has always been considered the kind of Magna Carta of internet–First Amendment cases, because it recognized the First Amendment is really foundational and really important. The Court has recognized this in various forms since then. But, in the intervening almost-30 years, it’s never squarely taken on a case that deals with First Amendment issues on the internet so, so profoundly.
Even if the Court strikes these laws down, if it does not also issue very strong language about how platforms can moderate—that the moderation decisions of platforms are almost per se outside the reach of government regulation under the First Amendment—this will not be the end of this. Whether it’s Texas or Florida or some blue state that has its own concerns about content moderation of progressive causes, we will continue to see laws like this.
This is just the beginning of a new phase in American history where, rightly, it is recognized that because these platforms are so important, they should be the subject of government regulation. For the next decade, we’ll be dealing with all sorts of court challenges. And I think this is as it should be. This is the age of Big Tech. This is not the end of the conversation about the First Amendment, the internet, and government regulation over big platforms. It’s actually the beginning of the conversation.
Nyce: This could really influence the way that Americans experience social media.
Rozenshtein: Oh, it absolutely could, in very unpredictable ways. If you believe the state governments, they’re fighting for internet freedom, for the freedom of users to be able to use these platforms, even if users express unfriendly or unfashionable views. But if you listen to the platforms and most of the tech-policy and digital-civil-society crowd, they’re the ones fighting for internet freedom, because they think that the companies have a First Amendment right to decide what’s on the platforms, and that the platforms only function because companies aggressively moderate.
Even if the conservative states are arguing in good faith, this could backfire catastrophically. Because if you limit what companies can do to take down harmful or toxic content, you’re not going to end up with a freer speech environment. You’re going to end up with a mess.