GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2024

Status

Accepted

Abstract

The era of “Hands off the Internet” is clearly at an end. Fueled by conservatives’ charges of platform bias, state governments have enacted, and the federal government has proposed, regulations to control platforms’ discretion in moderating content. Justice Thomas recently provided a roadmap for such regulation, suggesting that governments impose common carrier or public accommodation regulations on platforms to limit “viewpoint discrimination.” States like Texas then enacted regulation prohibiting “viewpoint discrimination” in content moderation, and this regulation was upheld by the Fifth Circuit. Florida enacted similar legislation, but such this statute was largely struck down by the Eleventh Circuit. This Term, the Supreme Court will weigh in on the protection the First Amendment grants to the platforms to moderate content – and to resolve the circuit split. Meanwhile, Congress has proposed statutes governing platform content regulation and the EU has enacted regulations on the subject.

At the same time, the Biden Administration became increasingly concerned that the platforms were not moderating enough content–especially during the COVID pandemic and after the January 6 insurrection. The Administration worked closely with the platforms to attempt to get them to remove COVID- and election-related misinformation and has now been accused of unconstitutionally coercing the platforms to moderate content. The Fifth Circuit recently held that the Administration’s actions violated the First Amendment, and the Supreme Court will also decide this Term whether to affirm that holding.

This Article examines the First Amendment implications of these various regulations and other government actions regarding platform content moderation. Although these are novel issues, First Amendment case law provides helpful guidance. On the issue of the constitutionality of state regulation of the platforms’ content moderation decisions, the Supreme Court three decades ago decided a similar case in which the government regulated speech platforms in the interest of protecting a diverse and expansive marketplace for speech. In Turner Broadcasting Systems v. FCC, Congress regulated cable network operators to ensure that they carried over-the-air broadcasts, in part to protect the public’s access to a multiplicity of information sources. Ruling on the cable operators’ First Amendment challenge, the Supreme Court recognized that there were important free speech interests on both sides – on the part of the regulated cable operators and on the part of the viewing public who were the intended beneficiaries of the regulation. In weighing these interests, the Court held that the right of the viewing public to receive access to a multiplicity of information sources was paramount. Justice Breyer’s concurring opinion on remand addressed the cable operators’ contention that the regulation impermissibly restricted their free speech rights. Breyer acknowledged that the regulation interfered with the editorial discretion of the cable operators and that it “extract[ed] a serious First Amendment price—amounting to the suppression of speech [by interfering] with the protected interests of the cable operators to choose their own programming.” Yet, he explained, there were other, weightier First Amendment interests on the other side of the balance – the side of the viewing public.

The Supreme Court should apply a similar approach to the Texas and Florida regulation of platform content moderation, recognizing that there are important free speech interests on both sides of the equation – on the part of the platforms and on the part of the platforms’ users. And, as it did in Turner, the Court should construe these regulations as content-neutral laws and should apply intermediate scrutiny to them. The Court should go on to rule, however, that neither the Texas nor the Florida legislation is narrowly tailored to advance the important government interests that they seek to advance. The Texas statute prohibits all manner of viewpoint discrimination and the Florida statute prohibits moderation of journalistic enterprises by the platforms. Both statutes fail intermediate scrutiny because they could have been more narrowly drawn to prohibit only the types of viewpoint discrimination – i.e., political and religious viewpoint discrimination – that were the motivating factors for such regulations.

With respect to the states’ lawsuit against the Biden Administration alleging that it impermissibly coerced the platforms into censoring disfavored (but First Amendment protected) content, the Supreme Court should hold that the Biden Administration officials came close but did not cross the line from permissible persuasion to impermissible coercion; rather, these government actors exercised their free speech rights under the government speech doctrine to attempt to persuade the platforms to moderate content in the ways that the Administration recommended.

GW Paper Series

2024-60

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