Defending Mark Zuckerberg, Et Al.

Mark Rubin

I feel the need to put pen to paper – fingers to keyboard, truth be told – to defend Mark Zuckerberg and a bunch of billionaires I admire not at all. Not. At. All. (I do use Facebook to promote my blog posts, but I’d be very happy if the site did not exist. As for Twitter, etc., a pox on all of them.)

Texas passed a law that takes from social media platforms the right to regulate content. Takes it away, plain and simple! (The issue comes up now because the U.S. Supreme Court stayed enforcement of the law for the moment.)

I am no expert on the First Amendment, although I did get an A – one of very few in law school – in Con Law. I know a bit, though.

The First Amendment states, regarding speech: “Congress shall make no law … abridging the freedom of speech … .” The provisions of the First Amendment have applied to state legislatures for just about 100 years. (Incorporation of the Bill of Rights through the Due Process Clause in the Fourteenth Amendment. Interesting conceptually, and complicated.)

The First Amendment prohibits laws which limit speech. (In fact, courts allow reasonable time, place, and manner restrictions, as well as certain other constraints. “No law” has its limits.)

Facebook et al. are not state actors. They’re private entities. They offer a service that individuals can enjoy or not, at their pleasure.

Effectively, the Texas law forces social media platforms to accept all comers. Does the law abridge the platform operators’ freedom of speech? Under the law:

• A business that makes money by selling advertising must accept content from people whose views and actions may send advertisers away.
• An entity that faces claims, often, that it should have done more when someone lacking a filter spouts off may face liability claims based on what its users say. (The same righteous Texas Rs who passed the subject billed have claimed FB did not do enough when the Uvalde shooter Instant Messaged certain people about his acts.)
• An enterprise that ought to have the right to shape its own image loses that right when it must accept what anyone wants to say.

Seems like the law interferes with the speech rights of social media platforms.

Justice Samuel Alito wrote a dissent. (The majority stayed enforcement of the law sans opinion.) He was, to put it mildly, disingenuous about one precedent. In Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980), the Court upheld protesters’ right to act on shopping center grounds. Justice Alito wrote that the Court rejected the argument that the owner of a shopping mall had “a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.”

In fact, the Court decision in Pruneyard depended on a California constitutional provision that gave protesters more rights than the First Amendment gave them. Further, the Court noted that speech from a table at the mall should not present an issue for a mall whose tenants sell stuff people want to buy.

Social media platforms do not exist to sell stuff people want to buy. For those purposes, people visit eBay and Amazon or … The Mall. Odious messaging on social medial platforms will affect those platforms more significantly than a table staffed by earnest people at the mall, trying to persuade shoppers and others who are, simply: Not. Interested.

Let’s be clear, here. The R Party in Texas recently renominated Ken Paxton, the named defendant in the subject case, as the R candidate for AG, despite being indicted seven years ago, being investigated regarding actions taken while he was serving as AG, and being a Tremendous Trump Toady. The Texas bill has as its sole purposes making sure Wingnuts can use social media platforms to sway public opinion. To further election fraud. And other scams. Above all else, though, these people want to be sure no one can tell them what they can and cannot say or do.

Justice Louis Brandeis told us, in his opinion in Frost v. Corporation Commission, 278 U.S. 515 (1929): “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” I guess Justice Brandeis did not fully appreciate what Texas might become, decades later.