Commentators on the recent district court’s order for a preliminary injunction in Netchoice, LLC v. Ashley Brooke Moody et al. have focused on social media’s victory against the State of Florida, celebrating the court’s opinion that Google, YouTube, and Facebook are private companies beyond the reach of…the Florida legislature’s newest rules restricting…ability to censor, deplatform and block users. These writers have neglected the tone of irresolution in this and similar cases decided in favor of Big Tech, however.

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Judge Hinkle, the presiding U.S. District Court in Netchoice, hinted at this, even while blocking from going into effect those sections of the Florida law that he ruled violated the First Amendment. Some months earlier, Justice Thomas, in his concurrence in Biden v. Knight First Amendment Institute, expressed a similar uncertainty…

Is social media space a public square, as some have argued, one that is properly subject to government regulation, or is it private property, buffered by the First Amendment from government constraint?…

In 2019, the Second Circuit Court of Appeals decided that then-President Trump’s Twitter account was a government-controlled public forum…Yet sometime later, Twitter bounced Trump from the platform entirely…How then could the account have been government-controlled?…

A few months later, Judge Hinkle, confronted with the Florida case, toyed with but finally failed to adopt Thomas’s perspective for going forward. He blocked Florida’s new laws prohibiting online providers from…removing political candidates from their platforms or shadow banning “journalistic enterprises.” He did this largely based on his acceptance of the plaintiffs’ claim that they were being forced to speak by…hosting speech against their policies or altering their editorial practices by being prohibited from adding warning language…

The invocation of the First Amendment for the time being saved the Big Tech plaintiffs…But reading Netchoice through the earlier Thomas concurrence reveals Knight-like contradictions in the district court’s ruling…

As Thomas conceived it, dominant online providers resemble two classes of highly regulated private property: traditional common carriers like railroads and telephone companies, and places of public accommodation, which is what the law calls public-facing businesses that provide goods and services to all who want to patronize them. Like common carriers, platforms dominate their markets by controlling communication networks. And like places of public accommodations, they offer services that implicate communal norms and the public interest.

Historically judicial doctrines have responded to the leverage exercised by both of these industries by curtailing their “right to exclude.”…Thomas suggests there is no reason this longstanding jurisprudence shouldn’t serve as a basis for restraining online platforms.

…[I]t is clear that Thomas deems it highly significant that the online platforms exercise a monopoly of access to online information…Hinkle…in reaching his decisions in Netchoice and employing reasoning based on classical First Amendment law, skips over economic realities…to “a monopoly in the marketplace of ideas.”…Thomas abhors the ability of online platforms to suppress a multiplicity of viewpoints by preventing some users from participating in the collective conversation. Hinkle…believes that intellectual competition over content ultimately determines who gets heard…

Thomas’s concurrence marks a turning point because it wrests the discussion from one about speech between factions to one about the distribution of speech to the broader public…

Seeing online platforms as serving as a conduit for speech to the public at large means that Thomas pays special attention to the empirical fact of which platforms have dominant market share and…should be subject to the “right to exclude.” Hinkle…dismisses the relevance of market share and economic dominance, reiterating that the government should not act as a referee…What Hinkle is leaving out of the mix…is that today a complete exchange of ideas depends upon access to the communications infrastructure….

One of the benefits of Thomas’s framework is that it prompts side-by-side comparisons with precedents involving parties seeking First Amendment protection from the enforcement of “right to exclude” regulations. An obvious example is Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018). Jack Phillips was sanctioned…for violating local public accommodations law by refusing to make a custom-order cake for regular customers of his on the occasion of their same-sex wedding. Part of Phillips’s defense was…the Free Speech Clause.

Phillips asserted that his hand-made…cakes were acts of creativity, embodying protected speech and expressive conduct. The State of Colorado…was forcing him to endorse a message that violated his beliefs. The left…insist[ed] his cakes were ordinary commodities…[T]he case went to the Supreme Court, which in the aforementioned 2018 decision, dodged the First Amendment and Free Exercise questions entirely…

Whereas Phillips’s individualized, value-laden…labors are still in First Amendment limbo, the automated, algorithm-manipulated decisions of online platforms…are not. The latter have been squarely covered by First Amendment protection in cases involving search engines…

…[T]o fit this case into traditional First Amendment jurisprudence, Hinkle…has to treat nonhuman editing and curation processes as speech rather than conduct, the latter of which isn’t covered by the First Amendment unless it is “expressive,”…In fact, many algorithmic processes create content blindly rather than via any personal agency…

It is not as if the Netchoice plaintiffs deny this, either. In their court papers, they give the absence of human review as a reason why it would be infeasible to…monitor their allegedly inconsistent decisions rejecting select users. In a similar vein, online platforms have tried to depict their attacks on their political enemies by linking their censorial practices to…goals such as community welfare or election integrity…

While courts have accepted this linkage…Judge Hinkle…relied on his own assumption that a substantive message is being transmitted by online platforms when they kick off a user. In reality, such actions may be completely uninformed by human intention.

Why should algorithmic outputs not have the last word on deplatforming? According to commentators, a transmitted message must be at least designed to reach a recipient to be speech. Yet, a major part of the complaint being addressed by the Florida Statutes is precisely that the basis for targeting specific users is neither obvious nor communicated….So Big Tech companies are basically contending that although they can act 100% mindlessly and randomly against their political enemies, or otherwise unilaterally determine what is in everyone’s self-interest, any attempt to hold them to account for their conduct is an imposition on their free speech…

What emerges is a kind of fake due process in which those with concentrated control over our networks succumb to the megalomanic lure of their own self-righteousness….Jonathan Turley’s dystopian discussion of the dangers of evading free speech protections through corporate proxies show the…cost of elevating machine learning…to the level of actual discourse…:

The government cannot implement a censorship system under the Constitution–but it can outsource censorship functions like Facebook and Twitter. Just this week, the White House has admitted it has been flagging ‘misinformation’ for Facebook to censor…At the same time, Democrats…have demanded that Big Tech companies commit to even more ‘robust content moderation’—an Orwellian term for censorship.

For Hinkle, these dangers are easily set aside by virtue of the fact that the internet affords speakers and political candidates more communicative opportunities than ever before. This, according to him, disproves the myth that online platforms dominate the media…Thomas…anticipated the common refrain that Hinkle would have recourse to and answered it…this way:

It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable….

Again, by premising his standards on (primarily) common carrier doctrine (and to some extent) public accommodations doctrine, Thomas takes the conversation out of boxes like “hate speech” and “misinformation” that too often skew these discussions, miring them in ideological arguments that endlessly rehearse themselves…

So long as courts construe the conflicts at issue as being about content rather than access, about ideas rather than the means of their distribution, they will likely wind up with results that…will in a matter of time stand revealed as facially incorrect, if not an ironic mockery of First Amendment values….

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(Excerpt from Human Events. Article by Robin Ridless. Photo Credit: Dole 777/Unsplash).