Valid Arguments

Several States’ Attorneys General have filed an amicus brief in a Supreme Court case centered on whether Texas and Florida statutes that limit Big Tech’s ability to censor speech done on their platforms are legitimate. The analogy they draw is one valid argument.

[Summarized by Fox News]: [G]iving Big Tech the ability to moderate or censor users’ content would be like giving cable or telephone companies permission to cut phone lines on speech at their discretion. The AGs note that under federal “must-carry requirements,” those companies are banned from subjugating any speech on their lines.


The Eleventh Circuit concluded social media companies could censor content because they have “historically exercised” power to refuse transmission of disfavored ideas.
But telegraph companies have a much longer history of censorship. Social media is less than two decades old. Congress did not impose must-carry requirements on telegraphs until 1888, 50 years after their invention[.]
Yet it is well recognized today that those must-carry regulations were constitutional—even though this Court declared that telegraph companies are “not common carriers.” History thus provides no basis for dismissing the striking similarities between social media companies and telegraph and telephones by dubbing social-media censorship “editorial judgment[.]”
While the earlier laws applied to telegraphs and telephones, it is no different when the companies carrying other people’s speech are digital rather than analog[.]
The States thus have a paramount interest in urging this Court to affirm that longstanding, historic authority of States to protect freedom of speech and enable representative government by prohibiting dominant communication networks from censoring[.]

There is one more argument that is, IMNSHO opinion, dispositively on point. This is the status of those Big Tech platforms—X (nee Twitter), Meta’s Facebook, and Alphabet’s YouTube, for instance—as public forums. Indeed, some of these platforms have explicitly stated that they intend to be public squares for public discourse, even as they also provide mechanisms for exchanging private correspondence.

The public square is precisely where speech may not be censored except within a very few very narrowly defined boundaries—incitement to riot, explicit threats of violence against particular persons. Whether any Big Tech platform has explicitly styled itself a public square, each of these platforms have grown so large—become so dominant—that each one of them is, de facto, a public square. Their censorship practices must be barred.

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