Do we consider Facebook, X, Instagram, and TikTok newspapers? Editorial mediums? Free-speech platforms? Public space? 

Florida Attorney General Ashley Moody and the opposing council, NetChoice LLC, argued this question last month. Mrs. Moody defended Florida and Texas laws that protected conservative speech online, and upon being challenged in the court, failed to win over the justices in a heated litigation. These laws would prohibit social media companies from removing some conservative posts, and under state statutes, reduce “censorship.” 

To understand this case we must understand how social media companies filter their content: “3rd parties,” or anyone who uses these social media, make content in the form of online posts. These posts are sometimes restricted, or taken down, if the company agrees it’s harmful to other users or unfit for the “content stream.” Summarized in Oyez.com, “...[social media companies] curate and edit the content that users see, which involves removing posts that violate community standards and prioritizing posts based on various factors.”

NetChoice summarized their argument simply: “Content moderation should be understood as an expressive editorial activity afforded stringent First Amendment protection.” In removing “overly conservative” posts, social media companies are either, according to Moody, censoring free speech or, according to NetChoice, expressing free speech, and it all depends on what they are. If they were private companies, which is what the courts decided, they are entitled to the same 1st Amendment rights as you and I. 

On top of this, the Supreme Court stated that the lower courts failed to consider striking legal precedents when considering these private social media conglomerates and, similarly, failed to adequately handle state laws in the context of the Constitution. Remanded in a 9-0 decision, going forward, the lower courts are expected to “[conduct] a proper analysis of the facial First Amendment challenges to the Florida and Texas laws regulating large internet platforms.” Given the ruling, they will side on behalf of NetChoice. 

The history of 1st Amendment cases- legal precedents dated back to the 1950s- is increasingly applied to the digital world. How we apply our legal history to modern life, especially in the context of the internet, is inherently subjective. As the court decided, Moody gave convincing arguments buried deep in a complex web of historic rulings but overlooked landmark cases that the Supreme Court favored in their remand; landmark cases pointing to the fact that these corporations are private companies, started by private citizens, deserving 1st Amendment protections. The fact that these companies have expanded into massive influences does not permit restriction, but it’s easy to see how many could consider the opposite. 

Take professors Lawrence Lessig of Harvard, Tim Wu of Columbia, and Zephyr Teachout of Fordham for example. They argued “[Facebook, Twitter, Instagram, and TikTok] are not space-limited publications dependent on editorial discretion in choosing what topics or issues to highlight. Rather, they are platforms for widespread public expression and discourse. They are their own beast, but they are far closer to a public shopping center or a railroad...”

This comes as shocking: these professors are liberal, so naturally, they would be opposed to laws protecting conservatism. But they see social media companies as more than private: they see them as vehicles in need of government intervention to protect the common good. This is how this case crosses ideological lines. 

I affirm the Supreme Court’s unanimous decision to prohibit government intervention in these social media companies. The Supreme Court had none of what the liberal professors argued, likewise, had none of what the conservatives argued. I think this is an excellent decision for three reasons: one, we consider the role of the court, secondly, we consider the inherent contradiction conservatives brought to the table, and thirdly, we consider the impossibility of drawing the line in the sand: how big is too big of a company? 

Firstly, the role of the Supreme Court is to interpret the Constitution. This case considered the states’ 1st Amendment protections. They ruled, however, that government intervention in a private company- no matter how big- is unwarranted. Texas and Florida, in attempting to protect the rights of conservatives, sacrificed the rights of others, sacrificed the rights of private companies that should have the ability to moderate their platform without intervention from the federal government. I completely and wholeheartedly agree with this stance- preserving the distinction between private and administrative spheres is necessary for a functioning democracy. 

We can consider a landmark case that supports this notion, one case that Moody failed to consider: New York Times Co. v. United States. In this case, Nixon sued the New York Times for publishing the Pentagon Papers, a government-leaked report documenting the United States campaign in Vietnam that exposed the lies carried by Nixon’s administration, uncovered the deceit behind this conflict, and unmasked our depressive progress in containing Communism abroad. The majority found it necessary to uphold the New York Times’ 1st Amendment exercise of press freedom, outweighing the national security risks that were brought to question by the federal government. 

To consider this case, though, we assume that TikTok and other social media corporations are similar to newspapers, private companies, free-speech platforms, or all of the above. I believe that this is the case- once we erode this idea, we open a Pandora’s Box of government intervention in our private affairs. In conclusion, the New York Times Company is like social media corporations, deserving the same protection we see in the New York Times Co. decision. 

Secondly, without considering precedent, let us dive into politics. An inherent contradiction arises, almost in a legal cognitive dissonance, on the conservative side in this case. They want to protect the 1st Amendment by eroding it. They want to limit government intervention, as traditional conservatives do, by increasing it. Proponents of private entities want to erode the notion of what it means to be private, going against the foundation of their ideology.

Arguing against me, supporters of Moody’s side would likely claim my position as substantially over-exaggerated. I would respond by saying yes, it’s a valiant, well-intentioned effort at reducing bias from large companies. But then I would direct my third point: how big is too big? If we go down Moody’s path, at what point do we initiate government intervention? 

These questions can’t be answered. They simply establish the idea that there could never be a point at which the courts could restrict a private entity. An argument could always be made that a corporation is overly biased in content moderation. Similarly, an argument could always be made that the influence of “X” company is not enough to levy government restrictions. In this way, a numerical measure like certain earnings of a private business or an amount of deemed “biased” content could never be made to place government restrictions in the private sector. Similarly, what we deem as “conservative”- then needing government protection from “biased” removal- is arbitrary. 

We ask the question: how big is too big of a company? At what point does a social media company have too much influence? At what point does a social media company deserve 1st Amendment restriction? How is it fair that some private companies, started by private citizens, have to worry about 1st Amendment infringement? 

The Supreme Court issued the right decision, and the lower courts will follow their lead. We must savor the moments to praise the court, and this is one of them.