Justice Alito’s Views On Social Media And The First Amendment Seem To Shift Depending On Who He Wants To Win

The Supreme Court’s opinions in the NetChoice/CCIA cases have been leading to some bizarre interpretations, as many people try to read into it things they wanted to see but just aren’t there. Cathy already covered some of the oddities of Justice Alito’s concurrence (which Justices Thomas and Gorsuch signed onto), but I wanted to dig in a little more to his concurrence, pointing out a few things that show just how much Alito is willing to decide on an ideological basis, rather than one based on principles.

First up is a point raised by Daphne Keller at Stanford. She notes that Alito cites to the Packingham ruling:

As the Court has recognized, social-media platforms have become the “modern public square.” Packingham v. North Carolina, 582 U. S. 98, 107 (2017). In just a few years, they have transformed the way in which millions of Americans communicate with family and friends, perform daily chores, conduct business, and learn about and comment on current events.

But, as Keller points out, in the Packingham case, Alito wrote a concurrence whining incessantly about the “dicta” in the Packingham ruling (not unlike what he did in this case) and specifically whined about the whole “public square” line, claiming it was “undisciplined” and would be interpreted dangerously by future courts. Here he is in Packingham:

I cannot join the opinion of the Court, however, because of its undisciplined dicta. The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.

He later notes:

I am troubled by the implications of the Court’s unnecessary rhetoric.

So it’s pretty rich for him to be now leaning on that “public square” dicta that he ridiculed in that very case. He is now arguing that states should absolutely be able to force websites to host content.

But we don’t even need to go back to that 2017 decision to see Alito seemingly changing his tune. (We still believe Packingham was correctly decided, and that people misunderstand the “public square” line, though for different reasons than Alito.)

Just last week in the Murthy v. Missouri ruling, Alito’s dissent explained why social media websites have the right to moderate as they see fit. He noted that websites are like newspapers and can publish or “decline to publish whatever they wish.”

Of course, purely private entities like newspapers are not subject to the First Amendment, and as a result, they may publish or decline to publish whatever they wish.

Yet, in the NetChoice ruling, he more or less argues that the states can block that right that he just admitted last week is protected by the First Amendment. He claims that perhaps the sites could be considered common carriers (which only makes sense if you don’t understand what a common carrier is).

Most notable is the majority’s conspicuous failure to address the States’ contention that platforms like YouTube and Facebook—which constitute the 21st century equivalent of the old “public square”—should be viewed as common carriers

The majority didn’t address it because (1) it’s stupid and (2) both the Fifth and Eleventh Circuits effectively rejected that argument. (Judge Oldham’s decision does talk about it, but neither of the two other Judges on the panel signed onto it, so it doesn’t count as binding in any way.)

Alito tries to get around this distinction by arguing that websites are somehow different than newspapers:

Instead of seriously engaging with this and other arguments, the majority rests on NetChoice’s dubious assertion that there is no constitutionally significant difference between what newspaper editors did more than a half-century ago at the time of Tornillo and what Facebook and YouTube do today.

Maybe that is right—but maybe it is not. Before mechanically accepting this analogy, perhaps we should take a closer look.

He later argues that there is some sort of distinction between algorithms making editorial decisions and humans (though, it’s not clear what constitutional relevance that has):

Now consider how newspapers and social-media platforms edit content. Newspaper editors are real human beings, and when the Court decided Tornillo (the case that the majority finds most instructive), editors assigned articles to particular reporters, and copyeditors went over typescript with a blue pencil. The platforms, by contrast, play no role in selecting the billions of texts and videos that users try to convey to each other. And the vast bulk of the “curation” and “content moderation” carried out by platforms is not done by human beings. Instead, algorithms remove a small fraction of nonconforming posts post hoc and prioritize content based on factors that the platforms have not revealed and may not even know. After all, many of the biggest platforms are beginning to use AI algorithms to help them moderate content. And when AI algorithms make a decision, “even the researchers and programmers creating them don’t really understand why the models they have built make the decisions they make.”56 Are such decisions equally expressive as the decisions made by humans? Should we at least think about this?

But, if it were actually true that algorithmic decisions were not protected under the First Amendment (and, again, he’s wrong, and we have precedent to say he’s wrong), then why would he even bring up their rights to moderate in the Murthy decision a week ago?

It seems that Alito, like so many others, has a very flexible view of the First Amendment based on whether his political allies or enemies are making the argument. There is no consistency beyond “the Republicans should get what they want.”