Investigative Issues: Big Tech Bum Rushing Supreme Court on Censorship?

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Real Clear Investigations

NetChoice v. Paxton—the lawsuit that may determine the fate of free speech on social media platforms—has taken a dramatic turn. Just short of two weeks ago, the large platforms—including the likes of Amazon, Google, Twitter, and Facebook, all acting through their trade group, NetChoice—made an “emergency application” to Justice Samuel Alito.

This sort of application is familiar in cases involving grave harm, such as an execution. But is there really any risk of such harm or other emergency in this case? Or are the platforms trying to bum rush the Supreme Court so as to sidestep the ordinary course of judicial inquiry?

 

The case arises out of the Texas free speech statute that bars the largest social media platforms from discriminating on the basis of viewpoint. In response, the platforms claim their censorship of speech is protected by the First Amendment.

Texas counters that they are common carriers, which serve as conduits for other people’s speech, and so can be barred from discriminating on the basis of viewpoint. In other words, the platforms are not being restricted in their own speech, but only barred from discriminating against the speech of others that they carry in their conduits.

These are complex questions, and even the slightest hint from the Supreme Court as to its answers will have outsize implications in the courts below. It therefore is disturbing that the platforms, speaking through NetChoice, have asked the court to take a position in a rushed “emergency application.” Such portentous questions should not be decided in a hurry. So why do the platforms want them resolved in proceedings that were briefed on only a few days’ notice?