The Regulation Q&A | Authorities does not get say in social-media concern | Columns
A few weeks ago, we discussed the law where private social media companies generally are not subject to First Amendment attacks by people who think the platform is suppressing their speech. This is where Donald Trump sued Twitter, claiming his free speech was trampled when Twitter blocked him from its platform. Private parties generally are not subject to First Amendment duties to other private parties.
But, what about where the government imposes requirements upon a social media company based on content of the speech found in the platforms?
That was the issue in Florida where a federal appellate court ruled that a Florida law was an unconstitutional infringement of a social media platform’s own freedom of speech rights.
Republican-controlled Florida state government, in response to Trump getting booted off Twitter and Facebook, passed a law which, among other things, banned a social media organization from willingly de-platforming a candidate for office whom the platform knows to be a candidate. Nor could a platform use algorithms to trace candidates to ban a candidate or certain content or material about the candidate. Nor could a platform take action to censor or ban a “journalistic enterprise” based on its content.
Government violation of the platform’s First Amendment rights?
Florida tried to argue the “common carrier” defense. The common carrier doctrine is where a carrier serves much of the public, and dominates the field they operate in. Thus, for the policy reason of promoting the health, safety and welfare of the population, government may require a common carrier to allow access by the general public.
In the days of cattle drives and gunslingers, telegraph companies were common carriers. They were few and everyone needed and used them. These days, recognized common carriers are utility companies, telephone companies and satellite companies.
Also these days, however, social media platforms are as widespread as roaming cattle separated from the drive. A court wrestling with whether a carrier is “common” — thereby allowing much stricter regulation — hinges on how scarce its availability is. And that is very fact-specific. The technology of social media platforms is much different than TV or radio broadcasts. The federal appellate court striking down the anti-de-platforming provision of the law noted that the internet can hardly be considered a “scarce” expressive commodity. There can be an unlimited number of websites at any time.
The court also noted that the Republican politicians supporting this law said it was designed to target companies for suppressing political speech. Thus, it was easy for the court to declare the law itself was restricting speech of the platform based on its content — which is in itself a generally impermissible governmental violation of free speech.
Florida may well ask the US Supreme Court to review and overturn the appellate court’s overturn of the law. Conservative SCOTUS Justice Clarence Thomas recently opined in a case involving Trump blocking people off his platform while he was President that such platforms may well be considered common carriers.
His dicta thus gives conservatives a pilot light of hope that SCOTUS will reinstate the Florida law.
However, in trying to regulate the political gas of Facebook, lighting the pilot light could cause any leaking gas to blow up in their political faces.
Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.