Social Media Isn’t A Shopping Mall

Something strange is happening in the legal academy, and we're worried about it. On January 23, 2024, the progressive policy organization American Economic Liberties Project filed an amicus brief in the Supreme Court case NetChoice v. Paxton, in support of a Texas law prohibiting social media companies from moderating - censoring" in the words of the law - the speech of their users, especially conservatives. The brief was joined by several prominent progressive law professors from Harvard (Larry Lessig), Columbia (Tim Wu and Richard John), Fordham (Zephyr Teachout), and Emory (Matthew Lawrence).

Now, there's nothing improper or even unusual about law professors writing or joining amicus briefs. One of us is a law professor who has written and joined several himself (and the other has worked with lawyers on and joined many amicus briefs as well). And there's nothing wrong with progressives supporting conservative positions (or vice versa). The law can make for curious bedfellows. Here, both conservatives and progressives want the government to regulate social media companies more aggressively, albeit for different reasons and in different ways.

But there are some serious problems with the AELP brief: It objectively misrepresents the law it purports to describe. AELP claims that the First Amendment allows the government to prohibit social media companies from discriminating against speech they disapprove, because their websites are digital commercial properties' made open by their owners for public use." It relies on the Supreme Court's 1980 PruneYard opinion, which held that the First Amendment allowed California to require a private shopping center that was open to the public to allow its patrons to exercise a reasonable right to free speech. AELP argues that social media websites are analogous to shopping centers, so the First Amendment allows Texas to regulate them in the same way, by requiring them to permit speech they disapprove.

While many lawyers and legal scholars think PruneYard is no longer good law (following later rulings that pared it back), it was never explicitly overruled, so AELP can still rely on it. But AELP should not misrepresent what PruneYard actually said.

As AELP admits, the Supreme Court's 1974 Miami Herald opinion held that the First Amendment prohibited Florida from requiring a newspaper to print a political candidate's reply to a critical article. According to AELP, PruneYard distinguished Miami Herald by holding that open-access laws do not present the same First Amendment concerns as right-to-reply laws." That is false. The Supreme Court didn't say anything about open-access laws. It said that Miami Herald rests on the principle that the State cannot tell a newspaper what it might print."

AELP tries to salvage its imaginary distinction between open-access and right-to-reply laws by insisting that the Miami Herald newspaper did not hold its pages open to all members of the public." That is also false. Yes, newspapers exercise editorial discretion" over which articles they print. But newspapers don't just publish articles, they also publish ads. And they're generally happy to publish advertisements by anyone willing to pay. AELP insists that Newspapers are exclusive publications; the public cannot, at any moment, publish their views in the New York Times." Yes, they can. All they have to do is buy an ad. So, newspapers are, in fact, open to all members of the public" willing to pay for the privilege. In AELP's terms, newspapers are and always have been open-access."

That's fatal to AELP's argument. According to AELP, the First Amendment allows states to prohibit social media companies from censoring users, because social media websites are open-access." But newspapers are also open-access," because anyone can buy an advertisement. So, AELP's argument necessarily implies that the First Amendment also allows states to prohibit newspapers from censoring advertisers.

Wrong. The Supreme Court explicitly said the opposite in PruneYard itself. And if the First Amendment means anything, it means that the government can't tell newspapers what to print.

What's the real difference between Miami Herald and PruneYard? It's simple. Newspapers are in the speech business and shopping malls aren't. The First Amendment says the government can't force you to share someone else's speech, but sometimes it can require you to tolerate speech you dislike. And which is social media more like? The business that is in the speech business, or a shopping mall where speech has nothing to do with its business?

It gets worse.

The brief repeatedly tries to couch these laws in terms pretending that these are anti-discrimination laws.

Amici file this brief to encourage the Court to preserve a traditional state power-barring unreasonable discrimination by private industry in the exercise of its business operations.

But that's also wrong. These are not anti-discrimination laws. And as another law professor, Daphne Keller, has pointed out, those defending the laws in Florida and Texas have only recently pivoted to pretend they're anti-discrimination laws by grasping at straws for a reason why these laws could be constitutional:

Discriminating against someone based on her race and discriminating against her based on her tweets are not the same thing. The Texas and Florida briefs blur the distinction between the two by conflating different meanings of the word discrimination." The states' laws were enacted to stop platforms from restricting speech based on the message it conveys. Doing that is discrimination" in the most basic and literal sense: The platforms are making choices between different things, under rules that treat users differently based on what they say-much as the hosts of a lecture series might exclude speakers or audience members for disruptive or racist remarks. The states' arguments equate this with the important and distinct issues addressed by civil rights laws. Those laws broadly prohibit discriminating against people based on who they are, like hotels or restaurants refusing to serve Black customers.

The brief, weakly, tries to address this distinction, by claiming that there are cases that support bans on viewpoint discrimination. Except, they get it backwards. The bans on viewpoint discrimination are against the government engaging in viewpoint discrimination, not in forcing private platforms to host all speech.

The brief attempts to tap dance around these different meanings of both discrimination" and viewpoint discrimination" by pointing to three things: (1) SEC restrictions on refusing to print shareholder proposals in proxies, (2) the Packers and Stockyard Act's anti-discrimination clauses, and (3) a short list of PruneYard-like cases all revolving around shopping malls.

However, none of these make any sense here. The shopping mall cases we've already explained above. They are different, and even if you accept the brief's description of open to all," we've already shown how Miami Herald says the results are different for organizations in the speech business.

As for the Packers and Stockyard Act, that too, has nothing to do with speech. Indeed, the law professors appear to be misrepresenting the law entirely. The prohibitions on discrimination in the law have nothing to do with viewpoint discrimination and the intentions of the law are about preventing monopolies and unfair competition through things like favoring some individuals for who they are, not what they say.

Finally, the SEC's restrictions are the only ones that are actually speech related, but are very narrowly tailored to a very specific scenario in a highly regulated industry, where a proxy statement may be the only way to get across shareholder proposals to a specific audience: other shareholders who will need to make decisions based on those proposals.

So, these are not the same thing. They misrepresent the law. They misrepresent what was said in these historical cases. They misrepresent discrimination law and what viewpoint discrimination" means.

We're disappointed by this brief, because law professors should know better. It's one thing for crackpots like former professor John Eastman to make legal arguments grounded only in wishes and rainbows. It's another thing entirely coming from respected legal scholars. We know they want the government to be able to regulate social media companies more aggressively. Maybe a superficially clever argument clouded their better judgment.

But law professors have a professional obligation to describe the law as it is, not as we want it to be. It's fine to argue that the Supreme Court should reinterpret the First Amendment to allow more speech regulation. It's not fine to pretend that's already the law.

Brian L. Frye is the Spears-Gilbert Professor of Law at the University of Kentucky. Mike Masnick runs this site.