On the average day, some 95 million pictures are posted on Instagram, along with 34 million videos on TikTok and hundreds of millions of tweets. Some go viral, most don’t. And some percentage — the numbers are unclear — are taken down for violating the content rules set by the platforms. Given the volume of posts and videos, it is no exaggeration to say that the rules for social media have become the most important speech regulations on the planet, policing what can and cannot be said online.
This fact has not gone unnoticed. Texas a few years back wrote its own law to govern big tech companies, barring them from discriminating on the basis of viewpoint when they take posts off their social media platforms. Two advocacy groups funded by Facebook, Google, Twitter and other companies sued almost immediately, arguing that they have a First Amendment right to remove whatever they want from their platforms for any reason, sort of as an editor might if she were choosing which articles to run in her print magazine every month. It has raised a constitutional question tricky enough to have made it to the Supreme Court in a case that will be argued on Monday called NetChoice v. Paxton.
If the Supreme Court endorses the First Amendment arguments presented by the platforms in this case, it could give Meta, X and Google the kind of immunity few businesses have ever had. I can’t say I like the law Texas passed — but that isn’t the point, for the cure is worse than the disease. If the justices strike down the Texas law, they would be jeopardizing our ability to control our own future using democratic means.
It is important to understand what the tech companies are asking for. Nearly everything TikTok or Instagram does involves moving and sorting information, even if it is just displaying search results or quietly collecting your personal data. The tech giants are pushing the simplistic position that any such conduct is “speech” (and any sorting or blocking of that speech is “editing”). If the justices buy this argument, they would be granting constitutional protection to nearly anything a social media platform does, putting both their actions — and those of tech companies more broadly — beyond the reach of lawmakers who want to constrain them. Doing so would create a kind of immunity verging on sovereignty that it is hard to imagine the framers of the Constitution ever intended.
Here are a few ways that could backfire. More than 70 percent of Americans want better privacy protections and tougher laws shielding our data from big tech. But if, after NetChoice, the courts consider the collection and selection of data “speech,” they could render laws protecting privacy a form of unconstitutional censorship.
This is already happening to some extent. Last fall, at the behest of the tech companies, a federal court struck down a California law meant to prevent social media platforms from profiling children. It did so by ruling that collecting data from children is a form of speech protected by the First Amendment. If the Supreme Court takes a similarly expansive view, it could disable nearly any state effort to stand up to the power of the platforms.
Take artificial intelligence. As A.I. becomes even better at displacing workers or even impersonating humans with deep fakes, we might want our government to do something about that. But if we’ve created a First Amendment rule that accepts the output of A.I. operations as speech, we humans will be powerless to do much about it.
Read most charitably, the Texas law seeks to ban discrimination in the town squares of our time, a little like the “fairness doctrine” rules that used to govern broadcasting. And while the Texas law may be struck down for other reasons, it would be a bold departure from precedent to say that the Constitution flatly forbids lawmakers from banning discrimination on major public platforms. We already ban discrimination by telephone companies, which cannot reject customers based on what they say or refuse to serve a paying customer. Such “common carriage” laws protect access to the utilities in our lives.
The big tech companies’ immunity claims hinge on the idea that they are “editors,” and that sites like Facebook or TikTok are the equivalent of newspapers. Newspapers do have the constitutional right to run what they want and nothing else. But sites like Facebook and TikTok are not really like newspapers. They hold themselves out quite differently — as a place for anyone to connect with the world — and they involve a volume of communication quite unlike any broadsheet. For better or worse, the social media companies are the information utilities of our time, and as such, they cannot be immune to reasonable regulation.
The First Amendment is a brave and beautiful part of our Constitution, but experience has shown it can be misused. The social media platforms would like nothing better than to hijack the concept of free speech and make it into their own broad cloak of protection. But that’s an increasingly dangerous path when these companies already play a role in our lives that can exceed that of government. The tech industry doesn’t need less accountability.
Tim Wu (@superwuster) is a law professor at Columbia, a contributing Opinion writer and the author, most recently, of “The Attention Merchants: The Epic Scramble to Get Inside Our Heads.”
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