Can We Safely Define Free Speech on the Internet?

An unusual split on the Supreme Court this week put at least a temporary halt to enforcement of a conservative-backed state law prohibiting Big Tech from removing posts based on their views.

A Court that most often splits on predictable lines split this time on unpredictable ones: Justices Brett Kavanaugh, Amy Coney Barrett and John Roberts joined Justices Stephen Breyer and Sonia Sotomayor in putting a halt to the law, while Justice Elena Kagan voted with Justices Samuel Alito, Clarence Thomas and Neil Gorsuch, although she did not join their dissent.

The split, if nothing else, suggests how difficult the underlying issues may prove to be.

H.B. 20, the Texas law, like similar laws winding their way through the courts, was passed by conservatives in response to Twitter's banning of Donald Trump. While some have complained that the social media platforms have done too much content regulation, thus H.B. 20, others — pointing to the deluge of hate, violence and disinformation online — complain that they have not done enough.

On the surface, the Texas law presents an easy case for unconstitutionality, not only because this kind of regulation of interstate commerce should be beyond the power of any one state (imagine Facebook facing 50 different regulatory schemes and you see the argument for federalism) but also because content regulation of private speech is almost always prohibited.

Think of the government telling your local newspaper what they can publish. Not allowed, unless we're talking about troop movements or child porn or incitement to imminent riots.

The whole idea of free speech in a democracy is that the government cannot control the viewpoints being expressed, and when it tries to do so — content regulation — it is almost always unconstitutional.

So telling the big social media platforms what content they can and cannot publish would seem, on its face, to run afoul of first principles of the First Amendment, which is precisely what the media companies are arguing.

But it isn't quite that easy. There is also a doctrine called the "public function doctrine" that provides that when private parties take on public functions, they are held to the same constitutional standards as the government is.

So the hard question to be faced is whether these platforms have taken on the characteristics of the public town square to the point that their sponsors, like the state itself, should be held to the same standards of neutrality as a public forum.

Banning Trump for falsely crying fire in a crowded theater?

Taking down video of people being butchered in a grocery store in Buffalo, New York?

Removing threats of violence by a mentally ill teenager?

Censoring — if that is what we choose to call it — racist speech?

Policing those who praise and deny the Holocaust?

Removing misinformation about the Russian invasion of Ukraine?

Free speech is not pretty. Trump is, relatively speaking, easy. If he wants to debate policy, the public square should be open. If he wants to incite a revolt against the constitutional system, then he has no claim on the public square.

What's harder is speech spreading hate for its own sake, without an imminent threat of violence.

Child porn is easy to prohibit in theory and difficult in practice, and other forms of exploitation are almost impossible to define. Those who opposed the Texas law argued that it would require platforms to disseminate Nazi screeds and ISIS propaganda.

Alito in dissent commented: "It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies."

Original intent apparently provides no answers, so the Court must look elsewhere to give meaning to the First Amendment. If only he took such an expansive view with respect to the right to privacy.

Nor do the usual political splits provide answers. Whether Alito chooses to admit it or not, the Court will be making law when it decides this case.