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Is Facebook Like Verizon or Like CNN?

The Supreme Court will hear oral arguments in two potentially momentous cases today. The cases arose from Donald Trump posting a tweet calling on his supporters to come to the Capitol on Jan. 6, 2021, saying, "will be wild." In this case, "wild," meant the Capitol being trashed, 140 law enforcement officers being injured (four of whom later took their own lives) and four protesters dying. This led Twitter to terminate Trump's account.

Texas and Florida responded to his removal by passing laws making it illegal for social media companies to ban people, no matter what they posted. A coalition of social media companies sued the states and the case reaches the Supreme Court today. The case deals with what the First Amendment means nowadays. Remember, it says that Congress shall make no law abridging the freedom of speech or of the press. The courts have ruled that this clause applies to state legislatures as well as to Congress. The social media companies are claiming that the Florida and Texas laws abridge their freedom of speech (i.e., what they can and cannot publish) and are thus a priori unconstitutional. The coalition won its case in Florida but lost in Texas, so now the Supreme Court has to sort it out.

Fundamentally, the issue is what social media companies are. If they are private publishers, like CNN, The New York Times, or a million blogs, the publisher may decide what content to include or exclude. No one has a First Amendment right to be interviewed on air by Anderson Cooper or have his or her "letter to the editor" published in the Times. Publishers can determine what content they do and do not want to publish and there is no appeal from that to the courts.

If, on the other hand, Twitter and Facebook are common carriers like all the phone companies and the USPS, they have no right to censor anyone based on content. If a Ku Klux Klan or Nazi group has a phone line from a phone company and pays its bills on time, the phone company can't terminate the phone line because it doesn't like the content being sent over it. Similarly USPS, Fedex, and other delivery companies can't refuse to deliver mail or packages to them or refuse to pick up packages at their addresses if pickup is a service they offer. In other words, publishers may discriminate against individuals and companies based on content but common carriers may not. So are Ex-Twitter and Facebook publishers or common carriers?

Sometimes classification calls like this are tricky. One of us, (V), was once involved in a case in Europe about whether routers, the devices connected by fiber-optic cables that form the backbone of the Internet, are telecommunications devices or computers. In the former case, they would be subject to import tariffs and require government approval; in the latter case they would not be subject to tariffs and would not be subject to government approval. Billions were at stake based on the product classification. In the Supreme Court case today, no money is at stake, but free speech might be.

Florida and Texas are arguing that social media platforms are common carriers, like phone companies and delivery companies, and thus may not reject any "customer" based on content. They are saying there are laws requiring phone companies to hook up anyone who is willing to pay their standard prices and that they may not refuse to service anyone based on what they may say on the phone. The social media companies are arguing that they are publishers, like television stations and newspapers, and they alone may decide what to publish. They say no one has a legal right to being heard on their platforms (except they can't discriminate against protected classes as a group, like banning Black people).

In the Citizens United case, the libertarians on the Supreme Court voted to allow powerful corporations to do whatever they wanted to in order influence political decisions. It would be ironic in the extreme if they now voted to say that powerful social media corporations were not free to do whatever they wanted to because it could affect political outcomes, especially if they were trying to protect democracy by banning dangerous lies. (V)

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