Newspapers could not be obliged to publish responses from politicians they had attacked, according to a 1974 Supreme Court judgment.
On Wednesday, Facebook, Twitter, and YouTube were sued by former President Donald J. Trump. Credit… New York Times reporter Maddie McGarvey
WASHINGTON, D.C. — Whatever else can be said about former President Donald J. Trump’s bizarre lawsuits filed last week, in which he accused three major digital companies of breaching his First Amendment rights by refusing him access to their platforms, the fact that he sued in Florida is fitting.
The government has long been at the forefront, and on the losing end, of efforts to compel private enterprises to publish political messages that they disagree with.
A Florida statute that would have given politicians a “right to reply” to negative newspaper articles was struck down by the Supreme Court over 50 years ago. Late last month, a federal judge in Florida halted a new state legislation that would have imposed significant fines on some tech companies that “willfully DE platform a candidate for office” (but not those that own theme parks in the state, such as Disney).
The two decisions, one from the Nixon period and the other from June 30, show that Mr. Trump’s lawsuits against Facebook, Twitter, and YouTube, which he filed in Miami on Wednesday, have a long way to go. Courts have ruled that the First Amendment only applies to government censorship, not private activities, and that it protects publishers’ editorial decisions, including those that refuse to give politicians a platform.
Pat L. Tornillo, who was upset by colorful editorials in The Miami Herald opposing his campaign for the Florida House of Representatives, filed the case that led to the 1974 Supreme Court ruling. Mr. Tornillo, a labor union leader, was accused of engaging in “shakedown statesmanship,” according to the newspaper.
Mr. Tornillo cited a Florida statute that required newspapers to provide free space for a response “in as conspicuous a place and in the same kind of type” to candidates who were attacked. The newspaper declined, lost in state court, and then appealed to the United States Supreme Court.
According to Chief Justice Warren E. Burger’s summary, Mr. Tornillo and his allies defended the statute by citing “a communications revolution” and “the specter of a “wired” nation, as well as “the huge accumulations of unreviewable power in modern media empires.”
All of this could be true, wrote Chief Justice Burger for a unanimous court. However, he wrote that the government cannot assume the function of editors in deciding what should be published under the First Amendment.
“A responsible press is an unquestionably desirable goal,” he said, “but press accountability is not compelled by the Constitution, and it cannot be legislated, like many other virtues.”
In a concurring decision, Justice Byron R. White, who was generally hostile to the news media, said that an uncontrolled and unruly press is preferable to government control.
“Of course, the press isn’t always truthful or even responsible, and it’s possible that it doesn’t present a full and fair debate on major public issues,” he wrote. “However, the First Amendment strikes a balance with respect to the press, requiring society to accept the risk that debate on important issues will not always be thorough and that all opinions will not be expressed.”
Judge Robert L. Hinkle of the Federal District Court in Tallahassee recently blocked another Florida law, this one enacted in May and based on some of the same notions that the Supreme Court rejected in 1974. Some social media sites would face fines if they used editorial discretion in declining to highlight the views of politicians who violated their guidelines.
Gov. Ron DeSantis, a Republican, said the bill’s goal was to promote conservative perspectives in a statement made when he signed it. “Big Tech censors will now be held accountable if they apply rules inconsistently, discriminating in favor of the prevailing Silicon Valley ideology,” he stated.
Judge Hinkle highlighted the Tornillo judgment, but noted that newspapers and social media sites such as Facebook and Twitter are not the same.
“Unlike social media providers,” he said, “newspapers create or select all of their material, including op-eds and letters to the editor.” “Somewhere in the neighborhood of 99 percent of the stuff that makes it onto a social networking site never gets evaluated further,” he wrote.
However, Judge Hinkle added that the new statute was intended for “ideologically delicate cases,” in which platforms utilized discretion in the same way that media do.
He wrote, “Those are the very circumstances on which platforms are most likely to exercise editorial judgment.” “In fact, the editorial decisions are the objectives of the statutes at issue.”
The law’s exclusion of social media services under shared control with huge amusement parks was perhaps the oddest component. Judge Hinkle noted that the discrimination, which appeared to be a benefit to prominent local corporations, was cause enough to submit the law to the most rigorous kind of constitutional scrutiny.
Mr. DeSantis has stated that the state will appeal, and at least one Supreme Court justice appears willing to evaluate whether new technologies necessitate new rules. When the Supreme Court dismissed a complaint alleging that Mr. Trump had violated the First Amendment by barring users from his Twitter account, Justice Clarence Thomas issued a concurring opinion, stating that the matter was moot.
Justice Thomas took advantage of the opportunity to ponder a bigger matter that is relevant to both the Florida legislation and Mr. Trump’s challenges. “Today’s digital platforms enable historically unparalleled levels of communication, including by government actors,” he said. “However, the concentration of control over so much communication in the hands of a few private companies is unprecedented. We’ll soon be forced to consider how our legal principles apply to highly concentrated, privately owned information infrastructure like digital platform.