By Joel Thayer And Zephyr Teachout
While we write from opposite ends of the political spectrum—one of us is a progressive democrat, the other a staunch conservative—we both agree that corporations were never intended to have as much authority vis-à -vis the First Amendment as they enjoy today.The First Amendment was never supposed to be an unassailable shield for giant corporations against laws they don’t like. Yet that is precisely what Big Tech intends. As Third Circuit Judge Paul Matey bluntly put, Big Tech “smuggles constitutional conceptions of a ‘free trade in ideas’ into a digital ‘cauldron of illicit loves’ that leap and boil with no oversight, no accountability, no remedy.”How could this bubbling “cauldron” possibly advance the goals of the First Amendment? It can’t. Let’s be frank: First Amendment jurisprudence has been a hot mess, especially when applied to Big Tech platforms, and tech companies have taken full advantage of it.That is, until the Supreme Court’s decision earlier this year in TikTok v. Garland. In that case, TikTok leveled a First Amendment defense in an attempt to void a law requiring it to divest its interests in its Chinese owner, ByteDance. The challenged law bans ByteDance from owning TikTok in the United States, given the Chinese government’s control over ByteDance and the national security and sovereignty risks that control creates. TikTok argued that the required divestiture imposed a “disproportionate burden upon” its First Amendment activities, which the company claimed included its “content moderation” and “content generation.” TikTok hoped that this claim would trigger strict scrutiny—the highest standard of Constitutional review—as other Big Tech companies have successfully done in other contexts in lower court cases.Unfortunately for TikTok, the Supreme Court didn’t take the bait. The Court held that the law “do[es] not trigger strict scrutiny,” and voted 9-0 against the app’s First Amendment plea.But this wasn’t just a bad day for TikTok; the Supreme Court’s decision took aim at Big Tech’s decade-long effort to use the First Amendment as de facto immunity against laws trying to impose even a modest amount of accountability on the industry.How so?First of all, the Supreme Court categorically rejected the argument that the mere regulation of an algorithm raises First Amendment scrutiny. It clarified that a law regulating a tech platform doesn’t invite a First Amendment review if the law’s primary justification is not content based, even if ancillary justifications are. This is an astoundingly refreshing statement.Equally important, this holding clears up earlier rulings regarding social media companies, like Moody v. NetChoice. In Moody, the Court considered whether two laws, one from Florida and the other from Texas, that regulated Big Tech platforms were unconstitutional. After a marathon of an oral argument, the Supreme Court concluded, quite reasonably, that the laws had too many different working parts and applications to make a sweeping decision one way or another. They remanded the cases to the lower courts, chastising the plaintiffs for using a broad facial challenge instead of particularized, as-applied challenges.In Moody, the Court generally punted on the First Amendment question, but gave tech companies some helpful dicta (i.e., non-binding language) throughout the opinion. The tech lobby has tried to make good use of it by manipulating legislatures into believing that any regulation of Big Tech’s curation practices is unlawful under the First Amendment.TikTok v. Garland clarified that Moody was not the win that Big Tech thought it was. In Moody, Justice Elena Kagan (citing Justice Amy Coney Barrett) stated that the case was limited and doesn’t apply to “feeds whose algorithms respond solely to how users act online,” which encompasses almost all distribution algorithms, used by everything from app stores to social media platforms. Big Tech and most of the press ignored that line.But TikTok v. Garland made clear that Kagan’s line was no throwaway. Remember, the law in that case also required ByteDance to release control over TikTok’s algorithm, and the Court found that that requirement doesn’t “regulate[] protected expressive activity, or conduct with an expressive component.”Together, these cases suggest that the Court has built a new framework for First Amendment challenges. They acknowledge a whole arena of regulation that simply does not implicate speech, including many algorithmic design regulations. This is what Kagan and Barrett indicated in Moody. Second, they recognize a category of regulations that do implicate speech but can still survive a challenge. This category, as in TikTok, includes regulations where there is a content-neutral justification.Why?These cases indicate that the Court is sick of Big Tech’s self-serving theories designed to protect the industry, not to promote individuals’ speech. Under the surface, they issue a strong rebuke; the Court is saying it is nonsense for the largest corporations in the world to use our First Amendment as a hammer to knock down every law challenging their dominion over our data and, indeed, our lives. Instead, the Court is doing real case-by-case analysis, looking to rebalance the scales in favor of a view consistent with the First Amendment’s laudable goals of ensuring our speech is protected from government censorship.These two cases, read together, are a significant development. They open the door for a whole host of common-sense, content-neutral regulations on social media and other app distribution platforms that were ostensibly off the table before. The Court has signaled a genuine openness to regulation focused on regulating product design, preventing deceptive contracting, imposing common carrier obligations, or protecting user privacy, which are likely to pass muster under the First Amendment.The First Amendment is our preeminent bulwark to ensure the state doesn’t act as a gatekeeper of what we can do or say. It’s not a tool to advance corporate welfare. James Madison—the author of the First Amendment—felt that private operators, if left unchecked, could amass more power than the government itself. He even described private monopolies as the “greatest nuisances in Government.” Given this concern, it would be completely backwards for anyone to claim that Madison wrote the First Amendment to shield giant corporations from basic scrutiny.To be sure, the Supreme Court may not have clarified all the contours of how Congress can regulate the tech industry. But it’s clear the Court has dealt a significant blow to Big Tech’s use of First Amendment doctrines. It has indicated that the First Amendment can’t be used as an all-purpose tool for Big Tech to smother our liberties or act with reckless abandon.Joel Thayer is president of the Digital Progress Institute and an attorney based in Washington, D.C.Zephyr Teachout is a Law Professor at Fordham, author of Corruption in America and Break ’em Up, and former Democratic candidate for Governor and Attorney General of New York.The views expressed in this article are the writers’ own.