The Supreme Court gives tech a win — and a reason to worry

The Supreme Court on May 16. (Bonnie Jo Mount/The Washington Post)

The Supreme Court gave the technology industry a win this past week, but one so narrow that it felt almost like a loss — and raised alarming questions about the future of free-speech protections in the United States.

A 5-to-4 ruling blocked temporarily a Texas law that bars large social media services from removing posts based on the views they express. The outcome is the correct one, but the court’s narrow majority and ongoing litigation on the issue suggest the fight is not over. The legislation in question now awaits a decision on the merits by the U.S. Court of Appeals for the 5th Circuit. Considering these ongoing proceedings, and that an 11th Circuit panel recently struck down a similar law passed in Florida, it seems likely that questions about the government’s authority over what tech platforms can do with the content on their sites will soon find their way back to the Supreme Court.

These cases would seem to present an ideal opportunity for the court to issue a robust defense of the First Amendment, which should guarantee social media companies freedom from broad government mandates on how they regulate the content they host on their private platforms. But, shockingly, only five justices signaled their willingness to uphold this principle in their preliminary look at the Texas law, and they did not explain their votes. Instead, the dissenters did all the talking, and it was not encouraging. Justice Samuel A. Alito Jr., joined in his dissent by Justices Clarence Thomas and Neil M. Gorsuch, discounted the extent to which sacrosanct First Amendment protections apply to large social media companies. The influence a few firms have over the public square might require some response. Yet infringing on those firms’ right to free expression is not an answer the Constitution permits.

Texas Attorney General Ken Paxton’s (R) argument — that social media sites should be classified as common carriers and thereby compelled to host all legal material — is perplexing, given conservatives’ opposition to the same concept when it comes to questions such as net neutrality. He and his allies apparently decided that the technology companies they have accused of liberal bias don’t deserve the same prerogatives as other corporate actors. But to compel Facebook, Twitter and others to disseminate hate, harassment, foreign-state propaganda and even white-supremacist manifestos is as contrary to this nation’s founding values as forcing a big-box store to celebrate Pride Month, or to disdain it.

There’s room for responsible regulation of Internet services. Indeed, there’s even a need for it. Technology companies in their Supreme Court petition asked the justices to go too far in their favor — precluding even reasonable requirements for transparency or appeals processes as they regulate the speech on their sites. But Texas’s effort to dictate to companies what they must and must not allow people to say doesn’t protect free speech. It imperils free expression.