The Babylon Bee was suspended from Twitter in 2022 after the social media giant said the satirical outlet had engaged in hateful conduct. Its offense: naming Biden administration official Rachel Levine, a transgender woman, as its “Man of the Year.”
The Bee appealed that it was engaging in parody of another outlet that had named Ms. Levine its “Woman of the Year,” but Twitter was unmoved and said the Bee was out until it deleted the offending post.
It took Elon Musk’s purchase of Twitter, now X, to get The Bee back.
Now The Bee is asking the Supreme Court to return the internet to its freewheeling days of free speech by upholding laws in Texas and Florida that would limit social media companies’ ability to censor users.
“Social media may be a private endeavor, but it is the new town square. It is the new town park,” said Jeremy Dys, senior counsel for First Liberty Institute, which is representing The Bee and its sister outlet, Not the Bee.
“Our freedom to speak and be heard is on the line,” said Seth Dillon, CEO of The Babylon Bee.
The justices will hear the cases on Monday, and experts say the court has the future of digital politics and commerce in its hands.
“This will have a massive impact on the election,” said Pam Bondi, former Florida attorney general and now chair of America First Policy Institute’s Constitutional Litigation Partnership. “Big Tech unfairly influenced 2020 by suppressing the Hunter Biden laptop story. If the Court sustains either the Florida or Texas laws, Big Tech will have to be guarded in anything they do to restrict the free speech of the press, politicians, or the public.”
The states enacted the laws in 2021 amid controversy over the 2020 presidential election and intense censorship battles of the COVID-19 pandemic when Twitter, Facebook and YouTube were scouring their sites for content they deemed inappropriate, inaccurate or harmful.
Egged on by the federal government, the social media giants limited the reach of posts questioning the push for coronavirus vaccination and wondering whether the virus had escaped from a Chinese laboratory. Twitter blocked access to a New York Post article revealing the Hunter Biden laptop. The social media company wrongly claimed the laptop and its contents were Russian disinformation.
Texas law prohibits social media companies from removing and moderating content that some may find offensive or hateful. It also requires disclosure of some business practices, such as algorithms used to promote content.
Florida’s law calls for fines of up to $250,000 per day for large social media companies that de-platform political candidates.
One federal appeals court upheld Texas’ law, and another ruled against Florida’s law.
Both laws are on hold pending Supreme Court action.
The cases have attracted some of the biggest names in politics and the technology world.
Former President Donald Trump, who has a lawsuit pending in a lower court against Twitter for its ban of his account in the wake of the U.S. Capitol riot on Jan. 6, 2021, has asked the justices to side with Texas and Florida.
John Coale, Mr. Trump’s attorney in the censorship case, said it’s time the courts recognize that big social media platforms have become the modern public square and governments must ensure access to all sides of political debate.
“We are asking the court to recognize social media companies are common carriers. If that comes to pass, then they are going to have to stop censoring,” Mr. Coale told The Washington Times. “They are going to have to stop discriminating against whoever they are discriminating against. It levels the playing field. They have to treat everyone the same.”
Jane Bambauer, a professor specializing in the First Amendment at the University of Florida, predicted that the social media companies would win.
“The stakes couldn’t be higher for the companies or, indirectly, for social media users. Hence the intense focus on lawyering and the large number of amicus briefs,” Ms. Bambauer said.
Among those friend-of-the-court briefs is one by Yelp, the travel and business rating site. Yelp said the Texas and Florida laws would ruin its business model by preventing it from scrubbing bad or malicious reviews from its pages.
As an example, Yelp pointed to Masterpiece Cakeshop’s Supreme Court case to defend its owner’s decision not to bake special cakes for same-sex ceremonies. Yelp said its page for Masterpiece was barraged by vicious reviews that had nothing to do with the bakery’s offerings. Yelp said it couldn’t have cleansed those reviews under the states’ laws.
Social media forum Reddit filed a brief pointing out that it had been sued under the Texas law. The plaintiff was kicked out of a “Star Trek” forum, known as a subreddit, for violating the moderators’ rules of civility.
Reddit said the state laws would ruin its model allowing subreddits to set rules and police their communities.
“The First Amendment does not permit Texas and Florida to subvert Reddit’s approach to content moderation in favor of a government-defined model for online expression,” the company argued to the justices.
Stanford University political scientist Francis Fukuyama told the justices that the laws would “backfire, restricting rather than expanding ordinary people’s opportunities for online speech.”
Amicus Populi, a group of former prosecutors, said the question confronting the justices is whether Facebook’s right to free speech is more important than its users’ right.
The outfit pointed to a debate percolating in lower courts about whether a demonstrator who tears down a poster with Hamas hostages’ pictures has the same free speech protections as the pro-Israel activist who placed the poster in the first place.
In other words, can censorship be considered free speech?
“The freedom to speak/publish deserves more protection than the freedom to keep others from speaking/publishing; subtracting speech imperils democratic decision-making far more than adding it,” the group said in its brief to the high court.
NetChoice, the advocacy group challenging the states in each case, countered that the companies are private and so their decisions — which are their speech — must be protected.
“The internet is a critical tool for free expression and free enterprise, and it should remain free from government censorship,” said Chris Marchese, NetChoice litigation center director.
Ashutosh A. Bhagwat, a professor at the University of California, Davis, School of Law, said the case comes down to whether social media companies have rights similar to those of newspaper editors in terms of controlling content on their platforms.
“Florida and (especially) Texas is trying to force platforms like Facebook to carry content, like hate speech (and ISIS propaganda) that most of them do not want anywhere near their customers or advertisers,” Mr. Bhagwat said in an email.
The cases are Moody v. NetChoice and NetChoice v. Paxton. Pam Moody is Florida’s attorney general, and Ken Paxton is Texas’ attorney general.
Decisions are expected by the end of June.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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