SCOTUS Sides with Silicon Valley, But There’s Still a Sliver of Hope for Free Speech

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There’s no doubt about it, folks: the Supreme Court’s latest rulings on Big Tech censorship were a massive blow to free speech online. But if we squint hard enough, we can find a glimmer of hope.

Let’s start with the downside. In a set of rulings, the Supreme Court blocked two efforts to protect citizens’ free speech on major social media platforms. In the first case, Murthy v. Missouri, the court made it more challenging for states and banned social media users from suing the White House and federal agencies for teaming up with Silicon Valley to suppress online expression.

In Murthy, the majority dodged the free speech issue, remanding the case because the plaintiffs lacked “standing.” The test for standing is almost laughable. It requires victims of the Biden administration’s censorship to prove that the timing of their posts being suppressed matches up precisely with the timing and subject matter of the Biden administration’s demands to Silicon Valley.

This is particularly problematic since the Biden administration essentially blocked some censored individuals. The Murthy opinion acknowledges that the administration pressured social media giants to censor particular speech and speakers. The majority even noted that in 2021, White House officials pushed Facebook to remove the accounts of the “disinformation dozen”—citizens blocked for their opinions.

This starkly contrasts the court’s unanimous ruling in National Rifle Association of America v. Vullo, in which all justices upheld the NRA’s lawsuit against New York’s financial regulatory agency for violating its First Amendment rights. The agency had blocked the NRA due to its pro-gun stance.

Justice Alito’s strong dissent in Murthy, citing the NRA ruling, is commendable. But as Alito pointed out, New York’s discrimination against the NRA was “ham-handed” compared to the sophisticated censorship scheme employed by the Biden White House. The court’s previous doctrine of favoring free speech in close cases seems missing in the Murthy context.

Florida and Texas tried to protect online free speech with state laws requiring major social media companies to avoid viewpoint discrimination. Yet again, the Supreme Court threw up a roadblock.

In Moody v. NetChoice LLC and NetChoice LLC v. Paxton, the court vacated lower court decisions and sent them back for further analysis. The majority held that the editorial judgments of Big Tech platforms are protected expressive activity under the First Amendment and thus cannot be unduly burdened.

But there is a potential silver lining — the legislative branch. Congress might be forced to act quickly if these setbacks generate enough public pressure. Big Tech isn’t waiting for Washington. Their dominance is mainly due to the immunity Congress gave them under Section 230 of the Communications Decency Act. Every First Amendment claim against these companies has failed. Occasionally, courts grant exceptions to Section 230’s near-bulletproof legal shield.

A bill also proposes regulating Big Tech as common carriers. Another bill by House Energy and Commerce Chair Cathy McMorris-Rodgers suggests creating a sunset expiration date for Section 230, forcing Congress to act before a deadline.

As we approach Nov. 5, we should brace for more silencing of political candidates and citizens by Big Tech, especially with the Supreme Court’s recent decisions. Congress needs to act, and so do we. The first three words of the Constitution’s Preamble — “We the People” — remind us that we are ultimately responsible for protecting our freedoms.