God Help Us, but Brett Kavanaugh Could Save the First Amendment

Look, you don’t have to like Brett Kavanaugh. You can hate him now, and you can go on hating him after you read this. But the fact is he was the hero, yesterday, at the oral argument in the most important internet speech case for decades.

In 2021, Republican politicians in Texas and Florida convinced themselves that Big Tech “silences conservative views,” and they got big mad about it. So they enacted a pair of laws, HB 20 (Texas) and SB 7072 (Florida), that co-opt large social media platforms’ right to control what speech appears on their services. HB 20 requires, for instance, that platforms treat all viewpoints the same. If a platform allows a government agency to post about a vaccination campaign, it must allow Roger Stone to post about how the vaccines have microchips in them.

We care about what speech a platform chooses to host or to block precisely because these choices are themselves expressive. Even the red-state legislators who enacted HB 20 and SB 7072 get this. It’s why they enacted those laws—they want to force the platforms to adopt an editorial bent more favorable to conservatives. (The laws would do more than intended, opening the floodgates for hate speech, harassment, and more.)

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Yesterday’s oral argument should have been straightforward. Content moderation is an expressive exercise of editorial judgment. Which means that it’s protected by the First Amendment. Which means that HB 20 and SB 7072—two overbroad, poorly crafted, highly partisan online speech codes—are unconstitutional.

Sadly, though, things didn’t go so smoothly. Some of the justices got drawn into side issues. (Could the government make Gmail carry all emails? Could it make Uber carry all riders?) Some of them weighed the idea of declining to rule and ordering more discovery. (Maybe the laws are not invalid in every situation, they worried. Better have the lower courts look into the matter further.) Some of them tried to switch the subject to whether Section 230—a key protection for online speech—should be narrowed.

Kavanaugh wasn’t interested in any of this bullshit. He didn’t shotgun a beer, crunch the can against his head, rip his robe off, and scream “First Amendment forever, motherfuckers!” But that was the vibe. Inside serious, soft-spoken Justice Kavanaugh, yearbook-page Brett was yearning to be free.

While a judge on the federal court of appeals, Kavanaugh had already written that it would be basically insane to let “the Government regulate the editorial decisions of Facebook and Google.” Going into the argument, his take on these cases wasn’t a mystery. But Kavanaugh has kept pretty quiet since joining the Court, so it was a bit surprising to see him absolutely bring it yesterday.

With his first words, Kavanaugh went right at these laws’ diseased root. “The concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others,” he said, quoting Supreme Court precedent, “is wholly foreign to the First Amendment.” By claiming to “level the playing field” for conservatives on social media, Kavanaugh made clear, Texas and Florida are admitting that their laws violate the Constitution.

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Next, Kavanaugh called the states out for trying to turn the First Amendment upside down. “In your opening remarks,” he told Florida’s solicitor general, “you said the design of the First Amendment is to prevent ‘suppression of speech.’ And you left out…three words…, by the government.” When the government boots you from its public forum, that’s (often) a First Amendment violation. When a private platform boots you from its service, that’s its right to free speech and free association in action.

Kavanaugh wasn’t done on this score. He noted that the word “censorship” was “being used in lots of different ways” at the argument. Indeed, content moderation by private services is mislabeled as “censorship” in HB 20 and SB 7072. Kavanaugh was having none of that. It’s the government that “censors,” he explained, when it “excludes speech from the public square” in “violation of the First Amendment.” When, by contrast, “a private individual or private entity makes decisions about what to include and what to exclude,” that’s “protected…editorial discretion.”

Then came Kavanaugh’s finest moment, when he shut down the most obtuse point made by any justice during the argument.

No one on the Court is more steeped in paranoia about “Big Tech tyranny” than Justice Samuel Alito. Perhaps, Alito wondered aloud, the term “content moderation” is a psy-op. Perhaps, Alito suggested, it’s a euphemism that they are using to get you comfortable with a practice that actually amounts to censorship. Perhaps, Alito mused, we need to “resist the Orwellian temptation to recategorize offensive conduct in seemingly bland terms.”

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If you’ve read Nineteen Eighty Four, you know how preposterous it is to throw the word “Orwellian” around like this. Alito is using a book about totalitarian surveillance and control to whine about people (most of them jerks) getting kicked off social media apps—very much a First World problem.

Kavanaugh set things straight. “When I think of ‘Orwellian,’” he responded, “I think of the state, not the private sector, not private individuals.”

“Orwellian,” he went on, is “the state taking over media, like in some other countries”—like in North Korea. And the First Amendment confirms, Kavanaugh said, “that we don’t want to be that country, that we have a different model here and have since the beginning.”

You don’t have to like Brett Kavanaugh. But he’s in the right in this crucial—and, alas, close—case. You want him casting the decisive vote. You even want him writing the Court’s opinion. Free speech on the internet needs saving, and, like it or not, he’s the man for the job.

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