​The U.S. Supreme Court heard oral arguments in two consolidated cases last month that involve content regulation on social media. The novelty of the issue – the Framers were notably silent on social media in drafting the Constitution – was highlighted by another novelty in the case: One of the amicus briefs filed with the court consisted of a three-page “metaphorical short story” by playwright David Mamet.

The unique nature of the legal and policy issues at play in these cases point to a reasonable policy conclusion: Americans will be best served if policymakers seek a consensus on regulation that balances social media company concerns with other interests, rather than elevating one while spurning all others and leaving judges to determine which Americans will be the losers.

The Background

A social media trade association called NetChoice sued Texas and Florida for laws they enacted regulating social media companies. These laws are intended to limit content-based restrictions on social media sites, like removing accounts of political candidates or limiting access to certain points of view. Thus, as SCOTUS Blog explains, they “contain provisions that limit the choices that social media companies can make about which user-generated content to present to the public, and they also contain provisions that require social media platforms to provide individualized explanations to users about the platforms’ editorial choices.”

The Arguments

NetChoice argues that these laws infringe social media companies’ free speech by requiring them to post content with which they disagree. They point to precedent from 1974 concluding that a state (Florida, interestingly) cannot require a newspaper to publish a response to the paper’s editorials by an unhappy candidate for state office who had been criticized. The Supreme Court held that Florida’s mandate was unconstitutional – an important illustration of the court’s protection against compelled speech.

The states, however, have a response to this analogy. Their proposed analogy is to a “common carrier,” a business that due to its unique position is barred from “refusing customers service for arbitrary reasons.” Historically, the concept arose in England to “decide what was to be done if an inn or a carriage was the only shop in town and could refuse to deal with customers.” While most businesses can choose whom they serve, these common carriers could justifiably be regulated.

One commentator explains that “classic common carriers include cargo trains, pipelines, taxi cabs, package delivery companies, postal services, and telephone companies – but also warehouses and inns.” According to this analogy, social media companies have an outsize ability to exclude viewpoints and thus can justifiably be regulated differently than a newspaper.

It should be noted that the state laws do not require social media companies to abandon all restrictions, like restrictions on violent or obscene content. The dispute is over viewpoint discrimination. This is in keeping with the history of regulation of common carriers.

The Justices

In the oral arguments, the Supreme Court justices seemed skeptical of the states’ claims, largely based on the compelled speech concept. But some justices suggested the companies’ actions were more like censorship than editorial control. Similarly, in one intriguing exchange, “Justice Neil Gorsuch told [the companies’ attorney] that, in his view, there is a tension between the idea that a tech company can’t be held liable for its users’ speech [as the federal Communications Decency Act provides] and the idea that moderating that content is the tech company’s speech.” Most of the justices, however, appeared to accept the argument that the government cannot require a platform to include messages with which the company disagrees.

There were a lot of unanswered questions about how the law would work in practice because it was challenged before going into effect. This opens the door for the court to choose to simply not decide the main issues for procedural reasons. At any rate, this could be an important case for states considering tech regulation.

The story David Mamet shared with the Supreme Court is called “Lessons from Aerial Navigation.” It is based on the theme “the map is not the territory” and describes a pilot disoriented by the mismatch between his navigational map and the actual terrain he is experiencing.

He writes this as a metaphor for all of us: “We are deluged with constant information (the map), and if, looking out, if we don’t see a corresponding situation we may disregard our senses, prefer the information to the reality, and, shun, deride or oppose any who don’t share our beliefs – which we, being human, call Reality.”

Conclusion

Disoriented is certainly an apt description – not just for the issues in this case, but for the underlying situation that the challenged laws are trying to address. The complexities in these lawsuits and in the parties’ positions suggests that traditional categories and legal theories of business regulation might not be well-fitted or nuanced enough for the situation at hand.

In such a scenario, state leaders will best serve their constituents by finding a way to work together with social media platforms to establish policy principles that protect both constitutional rights and the public good. That approach offers more promise for a beneficial outcome for all involved than the current lawsuits.