The cases — NetChoice v. Paxton and Moody v. NetChoice — involve laws in Texas and Florida that prohibit social media companies from removing content from their platforms, clearly violating the 1st Amendment rights of private companies. If these laws are upheld, they will make the internet and social media enormously worse.

The Texas law bars social media platforms with at least 50 million active users — such as Facebook, X (formerly Twitter) and YouTube — from removing content based on the views expressed. The Florida law prohibits them from removing speech by political candidates and “journalistic enterprises”; it also requires them to notify users of any content moderation decisions and provide an explanation.

Texas and Florida adopted these laws based on a widely promoted but unfounded perception that social media platforms are more likely to remove conservative expression. Researchers have found no evidence to support this belief.

But even if there were a basis for concern, social media platforms — like all other media — have a 1st Amendment right to decide what speech to convey.

Half a century ago, in Miami Herald Publishing Co. v. Tornillo, the Supreme Court unanimously invalidated a Florida law that required newspapers to provide space to political candidates who had been attacked in print. The court emphasized that freedom of the press allows a newspaper to decide what to include and exclude.

The government can’t regulate speech on privately owned social media platforms any more than it can edit a newspaper. Several justices, including conservatives Amy Coney Barrett and Brett M. Kavanaugh, made similar points during the oral arguments.

The U.S. 11th Circuit Court of Appeals declared the Florida law unconstitutional on this basis. It also found that requiring a justification to be provided for every decision to remove material would make content moderation impossible. In considering the Texas law, however, the 5th Circuit Court of Appeals ruled that social media companies are, like phone companies, “common carriers” and can therefore be prevented from removing content.

The problem with this argument is that social media platforms are not and never have been common carriers that simply transmit everything that is posted. Nor would anyone want them to be.

Social media platforms constantly remove awful content. Facebook removes 3 million pieces of hate speech a month, an average of more than 4,000 per hour. And yet no reasonable person would accuse Facebook of being too effective at removing such speech.

Fortunately, social media companies remove a wide array of awful expression, including violent and sexually explicit content, much of it protected by the 1st Amendment.

Underlying the two cases heard by the Supreme Court is the broader question of whether state governments should regulate the content of social media and other online platforms. Many states, including California, have in recent years adopted a plethora of laws trying to control these media. But the platforms are national and indeed international, making it undesirable to subject them to countless regulations by individual states.

The internet and social media have changed the very nature of speech by making it possible for anyone to speak immediately to a mass audience. The downside is that their speech can be hateful, harassing, false and harmful in other ways. One approach to this problem is extensive government regulation of what appears on social media. That would clearly violate the 1st Amendment, however, and we all should be concerned about giving government such power to regulate what we see and hear.

An alternative is to prohibit content moderation, requiring social media platforms to carry everything unless it falls into narrow categories of speech that is not protected by the Constitution. That is what Texas and to a lesser extent Florida are trying to do. But these laws also restrict the speech rights of private companies and promote even more hatred and violence on social media.

The best option is to leave content moderation to social media companies and encourage them to do a better job of it. This avoids the 1st Amendment problems of government regulation and the nightmare of unregulated social media. And that is the path the Supreme Court should take in the NetChoice cases by finding the laws in question unconstitutional.

Erwin Chemerinsky is a contributing writer and the dean of the UC Berkeley School of Law. ©2024 Los Angeles Times. Distributed by Tribune Content Agency.

The court ruled that the White House, the FBI, the surgeon general’s office and the Centers for Disease Control and Prevention cannot communicate with social media platforms to encourage them to remove false speech. Although it narrowed a federal district’s broader injunction issued in July, the appeals court left in place a restriction of important speech by the federal government.

False speech over the internet and social media can do great harm, even causing the loss of life. One aspect of the case involved the federal government’s concerns with false information being spread about COVID-19 and vaccines on social media. Federal officials rightly feared that false claims by anti-vaxxers would reduce vaccinations and put lives in jeopardy.

The lawsuit against the Biden administration was brought by Louisiana and Missouri along with a website owner and four people who opposed the government’s COVID-19 policy, among other issues. A federal district judge in Louisiana issued an injunction against the White House and many federal agencies.

The 5th Circuit ruling reversed the injunction against several agencies, including the departments of State, Homeland Security, Health and Human Services and the National Institute of Allergy and Infectious Diseases. But it left much of the injunction in place for four agencies.

The court in its decision relied on a 1963 decision that involved the government threatening obscenity prosecutions against booksellers. Government coercion violates the First Amendment. But there is no evidence that the Biden administration threatened any social media company with prosecution or any enforcement action.

The court said Biden administration officials “threatened — both expressly and implicitly — to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms’ best interests to comply.” But telling someone that the failure to act could lead to new laws and regulations is not coercion. Never did the government warn the social media companies that they were violating the law and would face punishment if they did not accede to requests to remove content.

The court said the administration violated the First Amendment by encouraging the platforms to engage in content-moderation of false speech. It concluded that the officials “significantly encouraged the platforms to moderate content by exercising active, meaningful control over those decisions.” There is nothing, however, in the opinion that shows the government exercised “control” over the content on social media. Encouraging platforms to remove false content does not violate the First Amendment.

A petition for review of last year’s case is now pending before the Supreme Court. Likewise, the Supreme Court will be asked to review Friday’s ruling on an expedited basis; the 5th Circuit panel said its decision would not go into effect for 10 days to permit Supreme Court consideration.

The Supreme Court should take both of these cases and make clear that internet and social media companies have the right to decide on the content on their platforms. The Texas law prohibiting content moderation is thus unconstitutional. But it should be constitutional for the government to encourage removal of false speech from social platforms, so long as no coercion occurs.

The challenge is to find ways to combat the spread of false information that can harm public safety without jeopardizing freedom of expression. The government identifying false speech and notifying social media companies is a sensible way to address this problem.

Erwin Chemerinsky is a contributing writer to the Los Angeles Times and the dean of the UC Berkeley School of Law. ©2023 Los Angeles Times. Distributed by Tribune Content Agency.

The ruling is especially shocking and troubling because in 2021 the same court rejected exactly the same challenge to the same law. The turnabout in Friday’s decision is likely to open the door to constitutional challenges to countless state business regulations.

The case, Olson v. State of California, was brought by Uber and Postmates to challenge AB 5’s requirements that drivers for those companies be treated not as independent contractors, but as employees subject to the protections of minimum wage, overtime, workers’ compensation, unemployment insurance and anti-discrimination laws.

In a 2018 case involving truck drivers, the California Supreme Court adopted a three-part test for determining the status of a worker for purposes of state wage and labor laws. The Legislature with AB 5 codified and expanded this test to cover most low-wage and low-skilled work, including app-based drivers, warehouse workers and other sectors where the legislature found companies abused the independent contractor designation.

It is a complicated legal landscape because in 2020 California voters passed Proposition 22, which grants app-based transportation and delivery companies an exemption to AB 5 allowing them to continue classifying their drivers as independent contractors. However, AB 5 still applies to all other California workers. Separately, Proposition 22’s constitutionality remains in question and will probably need to be resolved by the state Supreme Court.

In 2021, in American Society of Journalists and Authors, Inc. v. Bonta, the 9th Circuit expressly rejected the argument that AB 5 denies equal protection because it treats some workers differently from others. The court, following almost 90 years of Supreme Court precedent, declared there is “wide latitude afforded to states in managing their economies.”

This makes the court’s latest decision — on the very same issue of regulating gig-based companies — truly inexplicable. This time, Uber and other gig companies argued AB 5 unconstitutionally discriminates against them because it exempts other occupations, such as doctors, lawyers, graphic designers and cosmetologists.

The federal district court in Los Angeles dismissed the Olson case, noting the government has broad authority to make regulatory decisions. Indeed, since 1937, the Supreme Court has never struck down a regulation of business as violating the Constitution’s equal protection clause.

Bizarrely, the 9th Circuit decided in Olson that the gig companies could challenge AB 5 on the grounds that the law “can be attributed to animus rather than reason.” The court focused on statements of AB 5’s principal sponsor, former Assembly member Lorena Gonzalez, critical of the labor practices of app-based ride-hailing and delivery service companies.

If this analysis is allowed to stand, then any law regulating business can be challenged as violating equal protection if the bill’s sponsor points to particularly pernicious practices as a basis for the legislative action.

Surely, the state Legislature has the power to identify particularly harmful business practices and to regulate those. Doing that is not “animus,” but the essential role of the Legislature.

In adopting AB 5, the California Legislature concluded there were substantial abuses of workers by companies running app-based ride-hailing and delivery services. Its approach was not arbitrary; the law carries out a sensible test articulated by the California Supreme Court.

For decades, conservatives have preached judicial restraint and deference to the political process. But that doesn’t seem to apply when they don’t like government regulation of business. They will surely use the 9th Circuit’s new decision and its fallacious reasoning to challenge a myriad of essential regulations needed to protect workers and consumers.

Erwin Chemerinsky is a contributing writer to Opinion and dean of the UC Berkeley School of Law. Catherine Fisk is a professor at the UC Berkeley School of Law. ©2023 Los Angeles Times. Distributed by Tribune Content Agency.