Supreme Court blocks Texas law preventing social media companies from controlling content

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• Nick Schifrin:

  Late yesterday, the Supreme Court blocked Texas from enforcing a new law that would prevent social media platforms such as Twitter and Instagram from banning users based on their viewpoint.

  John Yang has more.

• John Yang:

  Nick, the law is part of the Republican battle with social media platforms over what they say is censorship of conservative and religious views. An appeals court blocked a similar Florida law from taking effect while it is being legally challenged.

  The key legal question is whether the platforms are like phone companies or cable companies, as Texas and Florida lawmakers argue, and therefore subject to regulation, or, as the industry argues, are they like publishers, protected by the First Amendment?

  Now two perspectives.

  Carl Szabo, vice president and general manager — I'm sorry — director general counsel of NetChoice, the trade association challenging the Texas and Florida laws. He teaches Internet law at George Mason University Law School. And Adam Candeub, who directs the — I'm sorry — directs the Intellectual Property, Information and Communications Law Program at Michigan State University.

  Gentlemen, thanks for joining us.

  Mr. Candeub, I'd like to start with you.

  And if we — I want to get to the legal issue later. But, first, explain to us why this law, these laws are good ideas. Why are they necessary?

• Adam Candeub, Michigan State University:

  Well, I think a lot of Americans fear that certain groups, certain people with certain perspectives are being shut out of the public square, which is what the Supreme Court terms the Internet.

  The social media platforms are the place where we discuss politics, where we meet our friends, where politicians talk to voters. And if we have a thumb on the scale so that only certain viewpoints get promoted, that's undermining a central prop in our society, democratic deliberation.

  That's what our nation needs more of.

• John Yang:

  Carl Szabo, what's your argument or what's your response to that? Is there a thumb on the scale?

• Carl Szabo, George Mason University:

  What we're talking about here is actually pretty simple. It's about government, in this case, Republican government, forcing a private platform to say something it doesn't want to say.

  It would be like the government going into Chipotle and telling them that they have to serve hamburgers because people want hamburgers. And, of course, that's absurd. So it's a really simple issue.

  Do we want, in this case, the Republican states of Texas and Florida to be able to tell private businesses that they have to host content that they don't want? And we're not just talking about political content. We're talking about lawful, but awful content. We're talking about stuff like terrorist speech, terrorist recruitment, child grooming, foreign disinformation.

  A shooter's manifesto would still have to be required to be allowed on these platforms under these laws. And there's a reason why NetChoice is fighting against these. And it's because the First Amendment protects every person, every business from this type of government-compelled speech. And it doesn't matter if you are like a cable company or an ISP, because the Supreme Court says even they are guaranteed these First Amendment protections and not have to carry speech that they don't want to carry.

  So, really, it's a pretty simple issue. And there's a reason why we have had two district court judges, four circuit court judges, and at least five U.S. Supreme Court justices side with us every step of the way.

• John Yang:

  Adam Candeub, what about that argument that this would require social media platforms to distribute terrorist speeches, as Mr. Szabo says, and disinformation?

• Adam Candeub:

  This is a mischaracterization of the law.

  The law is quite clear that platforms are free to censor dangerous content. They can censor and get rid of all sorts of undesirable content, like nudity. What they can't do is censor whole viewpoints.

  So, they can say no nudity on my platform, but they can't censor me if I want to be an advocate of the naturist lifestyle. And, furthermore, getting back to Mr. Szabo's point, that's just absurd. I mean, the government requires businesses to host speech that they don't like in all sorts of instances.

  This television program is a good example. Local television broadcasters can compel cable systems to carry their channels and their programs. And the Supreme Court has upheld this. The Supreme Court and other courts have upheld the obligation of telephone companies to carry on their wires views they don't like.

  Similarly, in the network neutrality regulations, the U.S. court for — Court of Appeals for the District of Columbia said ISPs must carry indiscriminately all sorts of messages. So this is just — this is smoke and mirrors saying private businesses have some sort of First Amendment expressive right to exclude people.

  Restaurants don't have an expressive right to exclude Black people or Jewish people from their — from their restaurants because they want to make a point. Similarly, the platforms, which are — which, again, are — the Supreme Court has called our public square, can't exclude people they don't like to make some obscure and not quite clear expressive point.

• John Yang:

  Mr. Candeub, I want to make sure I understand what you're saying.

  You're saying that they — under these laws, the platforms could still set a code of conduct, a standard?

• Adam Candeub:

  Of course. Of course, they could.

  If you look at the law — and I welcome your viewers to go on the Internet and look up H.B.20 passed by Texas, the state of Texas. The statute says, look, you can — it only goes to viewpoint. It doesn't go to content. And it allows the platforms to censor types of speech that the government allows them — already allows them to do, which, under Section 230, would include obscenity, indecent type of speech, nudity, excessively violent — excessively violent content.

  And it's very disturbing that NetChoice is making this claim. I mean, they put this claim in their papers to the Supreme Court. And that really underscores Justice Alito's dissent that this decision should have been made — should not have been made in this context, because with these false claims, they can't really have a proper and clear hearing of the issues.

• John Yang:

  Mr. Szabo, what what's the argument for why social media platforms should have First Amendment protection?

• Carl Szabo:

  It's incredibly simple. They're a private business.

  And Mr. Candeub and many conservatives support decisions like Hobby Lobby, Masterpiece Cakes, and Citizens United, which were all predicated on the notion that private businesses are private businesses and can decide what's best for their users and their customers.

  And we have cases like Turner, which is about Turner broadcast cable, which says that even cable companies, who the district circuit court decides are common carriers, even Turner is able to discriminate on what type of content is or is not allowed.

  And to the notion of, we're just throwing a bunch of spaghetti at the wall, and it's smoke and mirrors, well, we must be really good at it, because we have convinced four circuit court judges, all of whom are conservatives, that we're right. We convinced at least five U.S. Supreme Court justices that we're right.

  And, once again, this is a really simple issue that a lot of people try to make much, much, much more complex than it really is. So, if I were to go into Chipotle, and start flipping over tables, we would not blink an eye if Chipotle asked me to leave. They would say, no, get out. You're violating our rules.

• John Yang:

  Mr…

• Carl Szabo:

  Well, the same thing that happens in the physical world should happen in the online world.

  And what we're seeing in these two laws is that being forbidden, and not only that. It's forbidding our ability to speak freely, to moderate content how we want, to decide how to promote content that we want.

  So…

  (CROSSTALK)

• John Yang:

  I'm sorry. I'm going to interrupt you, because I want to know what Mr. Candeub to respond to that.

  And we have a very little amount of time left.

• Adam Candeub:

  Sure.

  Well, the social media companies are about connecting people to people. They're about the expression of their users. Nobody goes onto the social media platforms to hear what Zuckerberg feels about their kids' pictures. It's about communicating.

  And like the telephone company, they have an obligation to serve all. Mr. Szabo says that it's like Chipotle. And Chipotle can't discriminate. It can't say, oh, we can't — you can't come and eat my food because you're African-American or you're Black, or, in certain states and jurisdictions in this country, because we don't like your political point of view.

  (CROSSTALK)

• John Yang:

  Gentlemen, we're going to have to — I'm sorry to interrupt, Mr. Candeub.

  (CROSSTALK)

• Adam Candeub:

  … to the Internet.

• John Yang:

  We're going to have to leave it there.

  Adam Candeub of the Michigan State University Law School and Carl Szabo of NetChoice and George Mason University Law School, thanks very much.

• Adam Candeub:

  Thank you.

• Carl Szabo:

  Thank you.