Under siege from both Left and Right, Big Tech celebrated a win last week at the Supreme Court. “Twitter, Google Win Big at Supreme Court,” declared a typical headline in Politico after the Supreme Court unanimously sided with social media companies in Twitter v. Taamneh. “This is a huge win for free speech on the internet,” said a representative of NetChoice, a tech trade group representing social media companies.
Big Tech should not break out the champagne just yet. The Supreme Court did little to solve social media’s serious problems. Google, Twitter, and Facebook remain under fire for their discrimination against disfavored viewpoints, their efforts to increase the screen time of users with little regard for the psychological harms, and their reported cooperation with the government to censor public debates.
Taamneh reveals no clues on whether the Justices or Congress will alter the law’s view of the social media giants. Will the Court treat their platforms like private property, where owners can allow or disallow the speech they like, or like telephone and power companies, which cannot discriminate against users?
In Taamneh, a unanimous Court held that the relatives of victims killed by a terrorist attack could not sue the big social media companies for aiding and abetting the terrorists. According to the plaintiffs, Twitter, YouTube, and Facebook had carried propaganda from Islamic State—the terrorist group that carried out the deadly attack—and profited from adjacent advertisements. A federal law commonly known as Section 230 (of the Communications Decency Act of 1996) immunizes the tech companies from liability for hosting the speech of third parties, so long as they undertake efforts to curb obscenity or certain kinds of offensive speech.
But the victims’ families claimed that Section 230’s benefits should not cover the algorithms used by social media to target ads and recommend videos alongside this protected speech. And it was those ads and links, the families claimed, that helped ISIS recruit new members, raise money, and spread its extremist message.
Writing for the Court, Justice Clarence Thomas rejected this theory. A federal law allowed lawsuits against anyone “who aids or abets, by knowingly providing substantial assistance, or who conspires with the person who committed” a terrorist act. In this case, the Court observed, there was no claim or evidence that the terrorists had ever used Facebook, YouTube, or Twitter to plan or coordinate the attack. “The mere creation of these platforms,” Justice Thomas wrote, “is not culpable.” ISIS’s uploading of content alone does not mean that the social media companies took any active steps to aid and abet any terrorist attacks. Instead, the Court found, social media resembled passive bystanders, whom American criminal law holds harmless, rather than active criminal co-conspirators.
The weakness of the plaintiffs’ case in Taamneh, however, underscores why social media can find little repose at the Supreme Court.
The most profound challenge facing Big Tech is not whether those who view content can sue for any alleged harms that result. Section 230 already renders social media companies immune for claims arising from the third party speech on their platforms. Instead, Big Tech has made itself vulnerable by allying with progressives to suppress freedom of speech. Social media’s decision to ban Donald Trump after the Jan. 6 attacks is only the most salient example of the suppression of speech online.
The Twitter files released by Elon Musk confirm that Big Tech censored critics who questioned the COVID-19 lockdowns or the efficacy of vaccines. Big Tech apparently blocked the spread of the New York Post‘s stories about Hunter Biden‘s laptop, which may have helped Joe Biden win the 2020 presidential election. Social media companies have rejected content with which it simply disagrees, such as pro-life videos.
So far, Facebook, Google, and Twitter have managed to get away with such blatant censorship because they have successfully claimed the right of private property owners to choose the speech they wish to display or reject. A newspaper, for example, can choose which news to carry, which opinion writers to publish, and which letters to the editor to reject. Any owner of land can decide to post campaign signs or refuse to allow any. As the Supreme Court explained in Wooley v. Maynard, “the freedom of thought protected by the First Amendment” includes “both the right to speak freely and the right to refrain from speaking at all.” The First Amendment’s requirement of respect for freedom of speech only applies to the government, and not to private individuals (just as with the rest of the Bill of Rights).
In certain cases, however, the government can demand that private actors treat people neutrally. Airlines and railroads cannot choose to kick off passengers because of their race. Telephone, cable, and electricity companies cannot refuse to connect people because they are Democrats or Republicans; instead, they must provide services to everyone because there is no other option available. Such companies are referred to as common carriers. A common carrier is required by law to serve all customers on equal terms, without discrimination or preference.
Social media could well become the next common carriers. Justice Thomas, the very author of Taamneh, himself suggested in a 2021 case that the law might treat social media as common carriers. Texas took up the suggestion and passed a law, HB 20, that requires social media companies doing business in Texas to obey non-discrimination principles. While Big Tech has attacked the law in the courts, a federal appeals court in Texas recently upheld the law because social media companies have a “centrality” to “public discourse,” “a central role in American economic life,” and “an effective monopoly over its particular niche of online discourse” that justify treating them as common carriers.
As Google, Facebook, and Twitter continue to pick and choose their favored content, they will spur efforts such as Texas’s. Big Tech’s recent victory at the Court will not stop efforts to force social media to cease discriminating, end censorship and respect freedom of speech.
John Yoo and Robert Delahunty will release their new book The Politically Incorrect Guide to the Supreme Court (Regnery) on June 27. Yoo is a law professor at the University of California, Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution. Delahunty is a Washington DV Fellow of the Claremont Institute’s Center for the American Way of Life.
The views expressed in this article are the writer’s own.