Texas Is Right. The Tech Giants Need to Be Regulated.

On the average day, some 95 million pictures are posted on Instagram, along with 34 million videos on TikTok and hundreds of millions of tweets. Some go viral, most don’t. And some percentage — the numbers are unclear — are taken down for violating the content rules set by the platforms. Given the volume of posts and videos, it is no exaggeration to say that the rules for social media have become the most important speech regulations on the planet, policing what can and cannot be said online.

This fact has not gone unnoticed. Texas a few years back wrote its own law to govern big tech companies, barring them from discriminating on the basis of viewpoint when they take posts off their social media platforms. Two advocacy groups funded by Facebook, Google, Twitter and other companies sued almost immediately, arguing that they have a First Amendment right to remove whatever they want from their platforms for any reason, sort of as an editor might if she were choosing which articles to run in her print magazine every month. It has raised a constitutional question tricky enough to have made it to the Supreme Court in a case that will be argued on Monday called NetChoice v. Paxton.

If the Supreme Court endorses the First Amendment arguments presented by the platforms in this case, it could give Meta, X and Google the kind of immunity few businesses have ever had. I can’t say I like the law Texas passed — but that isn’t the point, for the cure is worse than the disease. If the justices strike down the Texas law, they would be jeopardizing our ability to control our own future using democratic means.

It is important to understand what the tech companies are asking for. Nearly everything TikTok or Instagramdoesinvolves moving and sorting information, even if it is just displaying search results or quietly collecting your personal data. The tech giants are pushing the simplistic position that any such conduct is “speech” (and any sorting or blocking of that speech is “editing”). If the justices buy this argument, they would be granting constitutional protection to nearly anything a social media platform does, putting both their actions — and those of tech companies more broadly — beyond the reach of lawmakers who want to constrain them. Doing so would create a kind of immunity verging on sovereignty that it is hard to imagine the framers of the Constitution ever intended.

Here are a few ways that could backfire. More than 70 percent of Americans want better privacy protections and tougher laws shielding our data from big tech. But if, after NetChoice, the courts consider the collection and selection of data “speech,” they could render laws protecting privacy a form of unconstitutional censorship.

This is already happening to some extent. Last fall, at the behest of the tech companies, a federal court struck down a California law meant to prevent social media platforms from profiling children. It did so by ruling that collecting data from children is a form of speech protected by the First Amendment. If the Supreme Court takes a similarly expansive view, it could disable nearly any state effort to stand up to the power of the platforms.

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