Social Media Companies Want to Co-opt the First Amendment. Courts Shouldn’t Let Them.

In two cases that could have sweeping implications for free speech online, Facebook, YouTube and Twitter are challenging new laws in Florida and Texas that limit their ability to decide which content appears on their platforms.

The companies are right that the laws violate the First Amendment, but some of the arguments they are making are deeply flawed. If these arguments get traction in the courts, it will be difficult for legislatures to pass sensible and free-speech-friendly laws meant to protect democratic values in the digital public sphere.

The Florida and Texas cases are unusually important because they concern the first significant efforts by states to regulate social media companies. The laws differ in some respects, but between them they prevent the companies from removing certain content, limit their use of algorithms and require them to publish information about their content-moderation practices. They also restrict the companies’ ability to attach their own labels to users’ posts.

The power that a few technology companies wield over public discourse is a real problem, but the two states’ laws are less an effort to address this problem than an attempt to punish certain social media companies for their supposed political views. In the months before the laws were passed, Twitter and Facebook kicked President Donald Trump off their platforms, blocked or limited access to a news story about Hunter Biden and attached labels to what they determined to be misleading claims about the election and the pandemic.

The Florida and Texas laws were payback. Legislators were candid about this, as were the states’ governors. Gov. Ron DeSantis of Florida declared that the law was intended to “take back the virtual public square” from “big tech oligarchs” and “their radical leftist narrative.” Gov. Greg Abbott of Texas explained that his state’s law was intended to stop the companies from silencing “conservative viewpoints and ideas.”

The laws themselves reflect this intent. This is especially true of the Florida law, whose definition of “social media platform” is gerrymandered to reach the Silicon Valley companies alleged to harbor liberal sympathies — but to exclude platforms owned by Disney, which has extensive operations in Florida.