We have one final Supreme Court decision to look at this year: Moody v. NetChoice. It's a bit tricky. The headline result is that it was a unanimous opinion, and technically that's true. In reality, it was probably more like a 6-3 decision.
The background is pretty simple: Texas and Florida both passed laws banning social media companies from "censoring" content based on viewpoint. They did this primarily because they felt that Facebook and others were unfairly removing conservative views in their main news feeds.
The unanimous part of today's decision concerned a technical question about "facial" challenges. Normally, you can only sue over a specific harm. But in this case, NetChoice sued on grounds that the Texas and Florida laws were facially unconstitutional. That is, they so plainly violated the First Amendment under all possible circumstances that they should be overturned.
There's a high bar for facial challenges, and all nine justices agreed that NetChoice hadn't met it. So they sent the case back to the district court for more argument.
But that's not the end of it. The majority opinion spends a lot of time providing advice ("dicta") on how courts should treat First Amendment cases. This is not, strictly speaking, part of the formal opinion and has no legal authority. Still, it gives you a pretty good idea of how the justices are likely to rule once the case winds its way back to them.
And six of the justices are pretty clear: in the main, social media platforms engage in expressive conduct and the First Amendment protects their right to do that free of government interference. They say this over and over and over:
The Fifth Circuit was wrong in concluding that Texas’s restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression.... The First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude.... The government may not, in supposed pursuit of better expressive balance, alter a private speaker’s own editorial choices about the mix of speech it wants to convey.... Texas’s law profoundly alters the platforms’ choices about the views they will, and will not, convey. And we have time and again held that type of regulation to interfere with protected speech.... A State may not interfere with private actors’ speech to advance its own vision of ideological balance.
....The interest Texas asserts is in changing the balance of speech on the major platforms’ feeds, so that messages now excluded will be included. To describe that interest, the State borrows language from this Court’s First Amendment cases, maintaining that it is preventing “viewpoint discrimination.” But the Court uses that language to say what governments cannot do: They cannot prohibit private actors from expressing certain views. [Italics mine.]
There's more, but overall it's a relentless demolition of the notion that governments can regulate the expressive speech of individuals or corporations in any way.
The ultra-conservative wing (Alito, Thomas, and Gorsuch), however, was not as convinced. Technically their dissent is a concurrence, since they agree that the case needs to be sent back for more fact-finding. But it's really a dissent in all but name. The majority rejected the facial challenge because—who knows?—the laws in question might be OK as applied to certain parts of certain platforms. Direct messaging, for example. So the lower courts need to substantially broaden their findings to cover more than just Facebook's main news feed.
The minority agrees but goes further: they say that even as it applies to the main feeds, the two laws might just be constitutional. In a "just asking questions" style, they pose a long laundry list of issues for lower courts to consider. Maybe Facebook should be treated as a common carrier. Maybe a news feed isn't truly "expressive speech." Maybe free speech applies to some platforms but not others:
On the present record, we are ill-equipped to account for the many platform-specific features that allow users to do things like sell or purchase goods, live-stream events, request a ride, arrange a date, create a discussion forum, wire money to friends, play a video game, hire an employee, log a run, or agree to watch a dog.
What's more, some sites moderate via algorithm and some via human interaction. Plus they're really, really big! And there are network effects. And AI. And anyway, how much difference could the laws make, since they affect only a "small amount of discordant speech"? (Though literally moments later the dissent mentions the "billions of nonconforming comments that YouTube removes each year.")
In other words, when the case eventually comes back, there's no guarantee that the minority will agree even about the narrow issue of restricting free speech. After all, it's conservative speech we're talking about, and that's special. Right?
However, I have to admit that the dissent has one sentence I approve of:
While the meaning of the Constitution remains constant, the application of enduring principles to new technology requires an understanding of that technology and its effects.
Quite true! This is something that liberals keep pointing out when conservatives go into their originalist crouches. It's funny that the ultra-cons suddenly become such living constitutionalists when conservative interests are at stake.
It's funny that the ultra-cons suddenly become such living constitutionalists when conservative interests are at stake.
Hey, now just because all of a sudden anything a Republican President does under arguably official color of office is Totally Okay Beyond Prosecution Or Even Investigation (hereafter known as the "Roberts Doctrine") doesn't NECESSARILY mean that they JUST came up with that. Purely coincidence! Derived from, uh, something something original textualism, or textual originalism, or something.
FWIW, it's not an exaggeration to say that this ranks up there with Dred Scott. Roberts has got a brand on his forehead now, for all to see. And if, dog forbid, the Felon is elected, many people now pooh-poohing the alarm over it will have some very unpleasant realizations.
re the felon (nytimes):
Mr. Trump’s lawyers asked the judge, Juan M. Merchan, to postpone the July 11 sentencing while the judge weighs whether the Supreme Court ruling affects the conviction.
The effort to set aside the conviction might be a long shot. The Manhattan case centers on acts Mr. Trump took as a candidate, not a president.
Yet his lawyers are likely to argue that prosecutors built their case partly on evidence from his time in the White House. And under the Supreme Court’s new ruling, prosecutors not only may not charge a president for any official acts, but also cannot cite evidence involving official acts to bolster other accusations.
I understand what the court’s trying to do here but I’m assuming that covering up an extramarital affair with a porn actress is not a part of a president’s official duties. And the fact that elements of the crime were physically done in the White House shouldn’t make any difference. On the other hand, the NY intermediate appellate court seems primed to do nice things for Trump (basically reduced a $500 million judgment to $120 million without hearing argument or issuing an opinion). So, who knows?
The appeals court didn't reduce the judgment against Trump. It reduced the size of the bond he had to post.
...without hearing reasons why he should get special treatment?
What Kevin’s doing here is a conventional constitutional analysis. The problem is that it no longer reflects reality or allows meaningful insight into the Court’s thinking. The Constitution is a dead letter at this point. The six Republicans are just playing Calvinball.
And the Democrats are utterly feckless. A real opposition party would be regularly making Republicans in Congress take hard votes on issues like abortion and birth control. And certainly a party at least notationally in power would have made expanding the courts a centerpiece of Biden’s reelection campaign and more generally a centerpiece for the party congressional races.
The six Republicans on the court are going to keep making increasingly right wing decisions until (like the Lochner court) they see that the Democratic Party is preparing to move against them. (Perhaps more accurately I should refer to Caroline Products as the moment when the right wing justices saw the handwriting on the wall and changed course)
re the supreme court, we gotta start thinking like republicans
eliminate all their computers and networks and force them back to hand-written documents (just like republican voting systems!)
flood scotus with daily paper filings from every blue state legislature and governor's office (they're sovereign, right?)
for their own protection and in the national interest, stop all work immediately until scotus and staff have been cleared for sci/full poly status (need to know where all those vacations and RV's might be coming from... foreign? domestic? lobbyist? criminal?)
have DC shut down all roads, sidewalks, utilities, etc., to the supreme court building and schedule it for a multi-year upgrade; the more jack-hammers the better
after that's completed, place c-span streaming devices in the offices of every judge and staff member to promote the public's confidence in the institution
How does one make Congress take 'hard votes' when they only control 49 Senators and smaller proportion of Representatives?
Liberals were big supporters, as I recall, of the Fairness Doctrine which mandated broadcast networks devote time to contrasting views on issues of public importance. Under Reagan, the FCC released a report stating that the doctrine hurt the public interest and violated free speech rights guaranteed by the First Amendment. So the FCC stopped enforcing it. Congress tried to rectify this and a bill was passed, but the legislation was vetoed by Reagan.
Funny, now it's conservatives who want to dictate what a media company must publish. Still, they have a weaker case since any given social media company is not a monopoly as an information provider.
The airwaves are public property, and there was limited bandwidth to use them.
The internet on the other hand is functionally infinite, and if you don't like Facebook you can go to Crookbook instead.