States have no business regulating the internet, it should be left up to Congress

On the last day of the Supreme Court’s recent term, the court issued opinions in the two First Amendment cases brought by NetChoice against Florida and Texas, challenging their statutes which tried to tell social media platforms that they must carry certain messages, even if that would violate the platforms’ moderation policies. 

The court did not issue a definitive ruling for process reasons, but the majority made clear that certain aspects of those laws violated the First Amendment, and the orders preventing them from going into effect will remain while the cases are sorted out on remand.

There is one aspect of those laws that has not received the attention that it deserves: When Florida decides that Facebook must keep up certain messages or may not give certain types of speech disfavored treatment, it is effectively imposing its preferences on everyone in the United States, because that is how these platforms operate. If anyone must have access, then everyone must have access, and so Florida and Texas will be forcing everyone — from the social media to all of their users — to abide by the will of their states’ legislators.

That does not sound very democratic, and it is not. Fortunately, the Supreme Court has a doctrine — the dormant commerce clause — that prevents states from exercising authority beyond their borders. In other words, if there is to be a regulation of what social media must do, the mandate cannot come from one state, but from Congress.

There are several advantages to this approach. First, the NetChoice cases were sent back to the lower courts to sort out how the various requirements in the law apply to different platforms. But if the dormant commerce clause prevents a state from enforcing its must-carry provisions because they infringe on the right of other states to take a different approach, that same rationale would also stop states from enforcing other mandates for other types of platforms.

The Florida and Texas laws also contain provisions requiring social media to disclose to the public their internal policies on content moderation (which the states call “censorship”). They also require, in somewhat different ways, that if a platform removes a post or downgrades its prominence, it must provide an explanation and then a right to an appeal. Even if such requirements were identical (which they are not and will never be) these mandates will surely impose significant costs on the platforms, which will almost certainly be passed on to users in one way or another.

This will happen even though the platforms themselves and most of the states where their users live are content to let them create and apply their own policies, rather than conforming to Texas or Florida law. Once again, the dormant commerce clause prevents individual states from enforcing these seemingly neutral “just tell the world what your rules are” laws.

Consider this example: Gmail employs a spam filter that directs some communications out of your primary inbox. If a state decided that Google may not impose its choice of filters on its users, then but for the dormant commerce, every user, in state or out, could be stuck making their own filtering decisions, instead of allowing Gmail to do it for them.

And there is a problem with state “must-carry” laws that do not apply to state laws which, for example, forbid making pornography available to minors over the internet. There is no tech fix for applying different content moderation standards to comply with 50 state laws, but there are reasonable ways a platform can prevent access to certain materials in some states but not in others. There are still serious First Amendment concerns about “keep out” laws, which the court will review in the Free Speech Coalition case from Texas next term, but the dormant commerce clause is not an issue for those laws.

Writing laws for the internet is fraught with First Amendment challenges. But when states try their hands at it, they cause the further problem of imposing their decisions on the rest of the country.

Hopefully, the courts on remand in the NetChoice cases will seize on the dormant commerce clause, which can swiftly and completely deal with all of the objections in those cases. Then those who wish to legislate for social media can take their ideas to Congress, which represents all Americans and has the authority to make laws for the internet that are in the best interests of all of us, and not just the legislators in a couple of states.

Alan B. Morrison is George Washington University Law Dean of Public Interest and Public Service.