Facebook’s First Amendment rights complicate Section 230 debate

By Daniel Lyons

Last week, House Democrats introduced another bill designed to alter social media companies’ business practices — this time by punishing “personalized algorithms.” This is the latest in a yearlong bipartisan assault on Section 230 of the Communications Decency Act, the primary statute governing hosting of user-generated content online.

Given the ongoing heat and light on this issue, it’s important to recognize that Section 230 is not the only legal framework in play. Even without Section 230, another significant obstacle exists to both parties’ efforts to micromanage platforms’ editorial decisions: the First Amendment.

The First Amendment right of editorial control

Over 40 years ago, the Supreme Court unanimously recognized that the First Amendment protects editorial choices of what content to publish and how. Miami Herald v. Tornillo involved a constitutional challenge to Florida’s “right to reply” statute, which required newspapers to print a political candidate’s response to criticism printed by the paper. The Herald published an editorial critical of union boss Pat Tornillo, a House of Representatives candidate who would later be imprisoned for embezzling millions from the union’s coffers. When the newspaper refused to publish Tornillo’s response, Tornillo sued under Florida law. But the Supreme Court found that the First Amendment prohibits the government from intruding into editors’ functions. The court continued:

The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment.

The court ultimately concluded that governmental regulation of this “crucial process” cannot “be exercised consistent with First Amendment guarantees.”

Importantly, the court recognized its decision could lead to stifling of certain viewpoints. Tornillo argued that concentration of media in a handful of corporations requires the government to enforce equal access in the interests of fairness and accuracy. (Read: “The First Amendment interest of the public in being informed is said to be in peril because the ‘marketplace of ideas’ is today a monopoly controlled by the owners of the market.”) But the court explained that “however much validity may be found in these arguments,” government-coerced access was an unconstitutional solution. Justice Byron White’s concurrence stated starkly: “Liberty of the press is in peril as soon as the government tries to compel what is to go into a newspaper.”

Prior restraint

The First Amendment also protects against government censorship, even in the public interest. In New York Times v. United States, the Richard Nixon administration sought to prohibit the Paper of Record from printing the Pentagon Papers, a classified study about the Vietnam War. But the court found that the government did not overcome the “heavy presumption against” government suppression of content, no matter how harmful publication might be. Justice William Brennan’s concurrence explained that even in wartime, “only proof that publication must inevitably, directly, and immediately” jeopardize lives “can support even the issuance of an interim restraining order.”

Applicability to modern platforms

Read together, the Tornillo and Pentagon Papers cases shield platforms from the strongest impulses from the right and left in the campaign against Big Tech. Republicans want to force Facebook and its competitors to include conservative viewpoints. But Tornillo is clear that “a compulsion to publish that which ‘reason’ tells them should not be published is unconstitutional.” Similarly, Democrats want to stamp out disinformation and other harmful material online, but the Pentagon Papers case puts a “heavy presumption against” actions that, in Justice Hugo Black’s words, would “abrogate the fundamental law embodied in the First Amendment.” The government can compel neither publication nor suppression of content by private actors. Editorial control also presumably encompasses subsidiary decisions, such as how to display certain information (even by algorithm), which are the high-tech equivalents of deciding which story goes on the front page and which is buried on page 13.

Not immune from consequences

Of course, freedom of speech does not insulate the speaker from consequences for the message. Printing a libelous statement can lead to damages; printing classified material can lead to jail. And the First Amendment provides no greater shield from consequences of online speech than offline. That’s where the rubber hits the road in the Section 230 debate, which is primarily a shield against consequences.

But the constitutional backdrop shows how the stakes differ for the right and left. If Section 230 is repealed, the left may achieve some aims. Private law doctrines, such as defamation, could expose platforms to liability for what users say, which could lead platforms to take down legally questionable content. But after Tornillo, no comparable private law doctrine would compel platforms to host material against their will.

Republicans should tread lightly. Their current flailing against Big Tech could lead to greater deplatforming of the right, not less.

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