The University of Texas in Austin hosted an in-depth discussion on internet censorship in light of the tech industry’s ongoing lawsuit to invalidate a Texas law that seeks to prevent social media platforms from unduly restricting speech.
The UT-Austin-based think tank Salem Center event called “Big Tech, Net Neutrality, and the Future of Online Free Speech” included Federal Communications Commissioner Brendan Carr, Michigan State University law professor Adam Candeub, Ryan Baasch of the Texas Attorney General’s Office, and Judge Glock of the Manhattan Institute as panelists.
The discussion centered on a Texas law passed in 2021 that prevents large social media platforms from banning the accounts of Texas residents if the content of the post is not illegal. The law’s passage prompted NetChoice, an umbrella organization representing social media platforms, to sue the state. That lawsuit made its way to the Supreme Court, which has yet to make a ruling.
Carr said that social media companies claim they can “censor any speech they want,” but he asserted that such a position is “not consistent with Supreme Court precedent in this area.” He alluded to another case currently being considered by the Supreme Court in which the government stands accused of pressuring private companies to censor speech, highlighting that indirect government influence can render private individuals state actors.
He said the courts must consider whether the platform is holding itself out as a “conduit for other people’s speech” or is it making “individualized decisions about what speech to carry and on what terms.”
Carr came down on the conduit view of internet social media platforms, likening them to cable television or a “digital town square.” He noted that the medium changes as technology shifts and advances. “The centrality of your medium to political discourse is relevant” to First Amendment analysis, Carr said.
He also noted how the cultural shift — particularly on the left — against free speech on the internet has happened over roughly a decade. To demonstrate his point, he noted that President Obama was speaking at Facebook’s headquarters in 2012 when he called free speech on the internet an essential part of democracy. Then, 10 years later, in 2022, he went back to Silicon Valley only to assert that free speech on the internet is a threat to democracy, according to Carr.
However, news reports at the time indicate that Obama said that “disinformation,” not free speech, was a threat to democracy.
Carr attributed this “shift” to the effect of identity politics on the political culture.
“Once we divide the country into the oppressed and the oppressor, you don’t need to have freedom of thought or diversity of opinions. You know what is right and wrong. The oppressor doesn’t get to speak. The oppressor is wrong. And you’re told what your position should be on various perspectives,” Carr said.
Adam Candeub likened social media platforms to the telephone. “When you talk to someone on the telephone, it’s not Verizon speech; it’s your speech. Therefore, regulation on how Verizon has to offer its services is not First Amendment protected.” Therefore, they should have to follow the same discrimination laws that “every other public-facing company has to follow.” Candeub called the pro-censorship position a “conflation of property rights and speech rights.”
Candeub noted that much of the difficulty in addressing the issue stems from the blurring of the lines between public and private entities thanks to the growth of the administrative state. “You have these huge DEI entities in large corporations. You have these huge compliance costs. And in a way they are being paid by private industry. But who are they really working for? They are working for the government because they are enforcing the government’s rules.”
Ryan Baasch, who argued the NetChoice, LLC v. Paxton case before the Supreme Court just weeks ago, noted that Section 230 of the 1996 Communications Act protects media companies from liability for speech that others express using their platform. However, NetChoice argues in its suit that social media companies censor because they could still be held liable for speech that takes place through their service. Baasch speculated that social media companies would choose to retain the shield against liability in exchange for ceasing to censor.
Judge Glock took a more libertarian stance on the matter, preferring to give deference to the media companies. In his view, the marketplace should decide the issue, not the courts. But he also noted that he was against government interference in what kinds of speech the platforms allow. “The government should not coerce tech platforms to censor themselves,” Glock said.
Glock’s position echoed that of other free enterprise-centric organizations like R Street, which filed a brief in the NetChoice case, arguing against the Texas law on the grounds that platforms have the right to censor in a “national free speech marketplace.”
