Hard Cases…

As I used to tell my students, cases rarely make it to the Supreme Court unless they’re difficult–unless there are persuasive arguments on both (or several) sides of the issue or issues involved. That admonition has actually become debatable as the current Court, dominated by religious “originalists,” has accepted cases that previous Courts wouldn’t have agreed to hear, but it remains largely true.

And hard cases, as the old legal precept warns, make bad law.

Which brings me to a First Amendment Free Speech case currently pending at the U.S. Supreme Court.

The question before the Court is the constitutionality of laws passed by Florida and Texas that restrict social media giants from removing certain political or controversial posts–in other words, from moderating the content posted to their platforms. As the Washington Post reported,

During almost four hours of argument Monday, the Supreme Court justices considered whether state governments can set the rules for how social media platforms curate content in a major First Amendment case with implications for the future of free speech online.

The laws being litigated are an effort to prevent social media companies from removing “conservative” viewpoints. The laws would impose strict limits on whether and when firms can block or take down content on their platforms.
At the heart of the matter is the issue highlighted by an exchange between Justice Alito and lawyer Paul Clement.
Justice Samuel Alito pressed NetChoice — a group representing the tech industry — to define the term “content moderation,” asking whether the term was “anything more than a euphemism for censorship.” “If the government’s doing it, then content moderation might be a euphemism for censorship,” said Paul Clement, an attorney representing NetChoice. “If a private party is doing it, content moderation is a euphemism for editorial discretion.”
I’ve frequently posted about Americans’ widespread lack of civic literacy–especially about censorship and freedom of speech. It is depressing how few citizens understand that the Bill of Rights is essentially a list of things that government is forbidden to do. Government is prohibited from dictating our beliefs, censoring our communications, searching or seizing us without probable cause, etc. Those restrictions do not apply to private actors, and for many years, courts have recognized the right of newspapers and other print media to decide what they will, and will not, print, in the exercise of their Free Speech rights.
Perhaps the most important question posed by the recent First Amendment challenges to Texas and Florida’s new social media laws is whether platforms exercise a constitutionally protected right to “editorial discretion” when they moderate speech. The platform’s central challenge to both laws is that their must-carry and transparency obligations infringe on that right by interfering with the platforms’ ability to pick and choose what speech they host on their sites. It’s the same right, they argue, that newspapers exercise when they pick and choose what speech appears in their pages.
In other words, whose First Amendment rights will we protect? Or to put it another way, does the First Amendment give all of us a right to have our opinions disseminated by the social media platform of our choice? Or, to ask that in a different way, if the First Amendment protects speech, does it also protect the right of powerful social media companies to suppress the speech of some number of people who use their platforms?
The Knight Foundation argues
The First Amendment is not concerned solely—or perhaps even primarily—with the maximization of speech per se. Instead, what it protects and facilitates is the kind of information ecosystem in which free speech values can flourish. Courts have recognized that protecting the right of speech intermediaries to choose what they do and do not publish—in other words, protecting their right to editorial discretion—is a necessary means of creating that kind of environment.
Most of us have concerns about the content moderation policies of these enormously influential and powerful sites. The question before the Court is–once again–who decides? Are those who run those sites entitled to decide what appears on them, or can government control their decisions?
Elon Musk’s takeover of Twitter (now ridiculous “X”) and his idiosyncratic definition of “free speech” has turned that site into a cesspool of anti-Semitism and conspiracy theories. The First Amendment currently gives him the right to make the site odious, just as Facebook has the right to remove racist and other objectionable posts. We the People decide which platforms we will patronize.
As I used to tell my students, the Bill of Rights addresses a deceptively simple question: who has the right to make this decision?


  1. At last someone makes sense out of the mess that is this free speech case. Thank you, Sheila!

  2. Although irrelevant to the posted article, I must comment on the new visual format. I know I sound like an old fart who hates change, however, as an academic who deals with visual culture I must point out that your former presentation was far more editorial than dominant. I will, of course, continue to follow your interesting posts – just offering an opinion.

  3. The 1st Amendment “freedom of speech” does not protect us from obvious lies and distortion of facts which are blatantly seditious, leading to treasonous acts by government officials and the public. It now protects those who want to destroy the Constitution and Rule of Law and has escalated to passing laws which which denies civil rights to many.

    The 1st Amendment stating “Congress shall make no law respecting an ESTABLISHMENT of religion, or prohibiting the free exercise thereof;…” has allowed personal religion of some to establish laws “prohibiting the free exercise thereof” by allowing specific religions to rule over specific groups of people. All in the name of Christianity! That in itself denies other religious freedoms and life styles and the courts are filling with cases against the most personal of our rights as Americans.

    “Are those who run those sites entitled to decide what appears on them, or can government control their decisions?”

    Isn’t it the issues, not the words, such as watching a president continue after his reelection loss to continue claiming the right to overturn the repeatedly proven election results? The courts are accepting frivolous cases denying the seditious and treasonous speeches and actions heard and watched world-wide now into its third year. It is not hard to recognize the current federal courts and Supreme Court aid and abet the actual problem at the base of the “hard cases” now before them which go against the Constitution and Rule of Law which no longer protects America and Americans.

  4. The great irony is that T*ump/MAGA is using the protections provided in the Constitution to commit actions that will destroy that same Constitution.

    I have often wondered what a “Bill of Obligations” would look like. Alongside the First Amendment that protects freedom of speech, is there not also an obligation that the speech is truthful and honest? An obligation to the Second Amendment would be to use that weapon responsibly, etc.
    If conservatives do not want their “speech” to be removed from public view, maybe they should try to make their speech honest and truthful.

    I recall the “broadcast public interest standard” that regulated the airwaves. Was it the Roberts Court that struck that down? Another example of a poor decision with unforeseen long-term consequences.

  5. Isn’t it a shame that, among those who lack civic literacy, we find the Supreme Court. The current court has done more damage to the rights of Americans than even tfg in the last three years.

  6. Here’s an idea: require that media devote time on the air waves (which we the public own) to educating us on this issue and many other constitutional questions. Because you are right. Most of us don’t really understand or have forgotten what is in the Constitution.
    Thank you for teaching us.

  7. The FISA Court gets around 1st and 4th Amendment rights. The government can spy on us without probable cause. The government has also been telling platforms which to suspend and delete. This has been going on for years. After Elon Musk bought Twitter, he handed over the emails from the FBI, NSA, and Homeland Security demanding that certain people be banned. The people being censored were independent journalists publishing the truth about our government and corporations.

    Yes, they removed hate speech and users who continuously misled people. There are community notes on certain posts to reflect an attempt at the truth and cut down on misinformation.

    Musk isn’t allowing the government to dictate who must be banned any longer since it is a private enterprise. I don’t know if that’s truth or fiction. It certainly doesn’t pertain to his posts of misinformation.

    He is allowing Israeli agents to add complete fabrications on the platform daily. Mossad, IDF, and AIPAC post some of the worst propaganda, which independent journalists and videos from Telegram have debunked. None of these propaganda posts have community notes correcting them. It would seem that Elon’s trip to Israel has changed his attitude toward the Genocidal Zionists. He kissed Bibi’s ring.

    Other users are correcting many of the propagandized posts on X. We no longer have to rely on legacy media because they are all biased, like our government.

    Lastly, I hope you all heard PM Rishi Sunak address British citizens on Friday. Talk about stepping all over the free speech rights of citizens.

  8. Justice Samuel Alito pressed NetChoice — a group representing the tech industry — to define the term “content moderation,” asking whether the term was “anything more than a euphemism for censorship.”
    Geeze oh Pete, Sam! If YOU don’t know what constitutes censorship—per the Constitution and Bill of Rights—who the heck does?!
    I’m embarrassed for him that he even asked such a question.

  9. There is the old idea that comes to mind here – that one is not permitted to yell “Fire!” in a crowded theater when there is no fire. And to me, the main point of that is when lying about truth causes mis-information to be spread resulting in the danger to all.
    We’ve seen that at its utmost extreme in the 4 years of the 45th President.
    But, we haven’t seen the yellers of ‘Fire’ held accountable. Until that happens, there is no issue deserving of being brought to the Supreme Court, because the only answer the Court can issue is “So what?”

  10. The Federal Government cannot censor. The state governments cannot censor. But do you know who can? YOU the consumer.
    If you do not like what appears to you as lies you can speak up, voice a complaint, call them on it. Or you can simply turn it off, cancel the subscription, disconnect or unfriend, but don’t complain to this old woman. I’ve come too far and seen too much for such crap.

  11. It’s essential to regard liberalism as fundamentally different from conservatism.

    Liberalism is a proven sustainable means of organizing large groups of the human species that we call countries.

    Conservatism is ephemeral, a religion, a local culture, a belief, not a universal truth.

    As humans, we tend to prefer clear-cut distinctions, but unfortunately, we live in a universe where the only high contrast comes from science’s relentless passion for measuring things, regardless of their size, speed, probability, or likelihood. While we may not be able to completely pin things down, understanding the probabilities of causes and effects, as well as the reasons behind any chaos, is still important.

    Liberalism” is based on knowledge not belief because the Magna Carta, and our Delaration of Independence, Constitution and Lincoln’s Gettysburg Address provided substance to the concept of the liberal democratic republic. Liberalism means being consistent with the reasoning behind the words in the Constitution when applied to the present times. This makes it a sustainable concept, and therefore a universal truth.

    Religion, culture, beliefs, and other important human structures cannot be denied, as they have their place in our lives. However, they fall short of being universal and sustainable. Anthropologists define culture as an adaptation to current events, weighted towards humans not changing capriciously; putting value on the experience of ancestors and contemporaries. For example, Christianity adapted to the present times while holding on to some of its past traditions.

    Therefore, our current politics is a tug of war between the religion of conservatism and the knowledge behind the Constitution, which is a specific means of organizing humans in large sections of the homo sapien population, countries. Liberals believe that the Constitution is a universal truth that could apply to all countries and would benefit them over the long term. In this way, it is not a belief but a universal truth about our species. It is worth considering a different perspective on “conservatism.” It seems to me that conservatism is more like a religion than a body of knowledge: a belief system that is a product of culture.

  12. I am no fan of Alito but his suggestion of content moderation as a synonym for censorship deserves serious consideration. The rights of speech in our First Amendment are not absolute (see yelling fire in a crowded theater), but who defines and/or modifies such marginal right to conform to the language of the First Amendment? Musk with his X? Trump with his “truth” platform?

    Presumably the Supreme Court is called upon to set a standard for the exercise of speech compatible with the First Amendment – a daunting task and one that may be incapable of solution given all the variables involved, but one the court must address considering the rise of authoritarianism by such as Trump who, ironically and as we have seen, uses his constitutional rights in order to destroy the Constitution.

  13. I used to be a Twitter consumer and Facebook, too. Neither platform was worth supporting and I opted to delete my accounts and moved on.

  14. Related to this is recent action by DeSantaclaus. The FL conservative legislature passed a bill to prevent kids from using dangerous social media platforms. El Governor vetoed it suggesting it stamped on “parents’ rights”. So parents should have the right to let their young’uns see/be part of porno? What’s next…reversing all common good regs like seat belts, motorcycle helmets?

  15. A solid analysis and a good set up for the always welcome comments your savvy insights prompt, Sheila. For example, I loved this question from Peggy Hannon: “Isn’t it a shame that, among those who lack civic literacy, we find the Supreme Court.” And Lester Levine’s snarky but profound revelation to make a powerful point.

  16. Everyone wants freedom to express what they believe to be true but may not be willing to grant that same right to people who disagree with them, thus violating the Libertarian Principle.
    Dueling newspapers did not destroy America, nor will dueling web sites.
    If someone can meet the legal standards to show they are being harmed by “speech”, they have recourse through litigation. If the ” speech” in question cannot be shown to cause harm, it should not be restricted, no matter how objectionable some people find it.
    I agree with Paul Clement. Content moderation done by the government is censorship. When done by a private individual or company, it is not.

  17. Sharon Miller – “I agree with Paul Clement. Content moderation done by the government is censorship. When done by a private individual or company, it is not.” Says it all about today in America, no trust in government, more trust in people and corporations (just happen to be blessed as “people” by SCOTUS). Not sure this is what the Founders had in their idealistic minds…

  18. Well written piece. This case really is just an update of the old expression from the hayday of newspapers: “Never pick an argument with someone who buys ink by the barrel.”

  19. As you know in 1938 Orson Wells directed and performed in a radio program “War of the Worlds”; a lot of people didn’t realize it was fiction and it caused public panic. It seems today a lot of misinformation and outright lies are perpetrated on the American people for power and profit and are causing some to make bad decisions for themselves. Radio, TV and digital that delivers info into private domains is a powerful currency that can be a bully pulpit. A lot of people are vulnerable for various reasons, and because it’s on the internet it must be true.
    Wondering about a person who knows there’s a fire about to explode in a theater, if he doesn’t work there, he’s not obliged to yell “Fire”?

  20. “the Bill of Rights is essentially a list of things that government is forbidden to do. Government is prohibited from dictating our beliefs, censoring our communications, searching or seizing us without probable cause, etc.”
    Interesting concept, especially when Justice Alito thinks it’s OK for him to impose his beliefs on the women of the USA. I guess he never took civics. 🙁

  21. Lester. My point has nothing to do with relative levels of trust. It has to do with freedom of expression. A private entity, whether an individual or a company, is allowed to self censor. The government is not allowed to censor.

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