In 2021, the Texas Legislature passed Texas House Bill 20, a law that bars social media platforms like Facebook, X, and WhatsApp from banning, censoring, or manually demoting accounts within a social media platform’s algorithm so that fewer people see their content based on what those accounts have posted (de-boosting). This bill and others like it were prompted by controversial “content moderation” decisions that were seen as politically motivated, such as the attempt to silence a New York Post story about Hunter Biden’s illegal behavior published on the eve of the 2020 presidential election. The attempted censorship ended up being a bigger scandal than the story itself, and it galvanized many elected officials to pass legislation regulating social media moderation.
The Texas bill was challenged in court and eventually made its way to the U.S. Supreme Court. On July 1, 2024, the Court ruled in Moody v. NetChoice in favor of NetChoice, a tech-industry group that legally represented Facebook, Google, and other social media platforms, saying that the lower court did not conduct a proper analysis of the First Amendment challenge brought by NetChoice and remanded the case back to the lower courts. While the Supreme Court recognized the First Amendment rights of social media companies to moderate their own content, the case did not raise another major constitutional issue presented in these situations: What are the property rights of social media firms, and can a state regulate them?
While these efforts to regulate social media have been marketed as trying to protect individuals’ free speech from government censorship, a forthcoming article in the Antonin Scalia Law School Journal of Law, Economics & Policy by PLF senior legal fellow Ethan Blevins argues these laws would violate property rights if put into practice and would create a dangerous precedent f or further government control of online activity.
A common-sense skeptic might ask: How exactly does stopping social media companies from banning or hiding accounts with unpopular politics violate property rights? This overlooks a crucial aspect of property rights—namely, the right to exclude.
The right to exclude is at the core of private property. So much so that the Supreme Court has described it as “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” The right to exclude doesn’t just protect a landowner’s right to tell the public to “keep out.” Imagine if the general public were entitled to the use of your car at certain hours of the day. It would without doubt impede your use of the car, if not frustrate it entirely.
In the case of social media companies, preventing them from moderating content functions as an imposition on their right to exclude. An apt comparison is to think of social media platforms like a social gathering on someone’s property. Most people would intuitively agree that the host and property owner absolutely has a right to exclude certain people from their gathering. The Supreme Court has affirmed this right in cases like Cedar Point Nursery v. Hassid, where the Court overturned a California regulation allowing union organizers to enter farmland for the purpose of speaking with employees about unionization and soliciting their support. The Court’s rationale for overturning that regulation described it as a ‘regulatory taking’ of that property by dictating to the owner who can or cannot be excluded from that property.
While the government can take property if it provides ‘just compensation,’ it is unclear exactly what that would look like for a social media company, and neither the Texas law nor similar legislation passed in Florida banning deplatforming provides any proportional or coherent way to determine appropriate compensation. This is an important consideration; the limitations on the government’s power to take property or dictate how it is used is an essential aspect of the U.S. legal system that prevents arbitrary seizures of property by the government and protects actors in the free market from undue interference. If violated, it would set a dangerous precedent for further government interference in our lives.
Now, a supporter of anti-deplatforming laws might protest that the law is in fact designed to stop the government from using political pressure to censor speech, as seen during the Hunter Biden laptop incident, and provide a legal guardrail for social media companies to point to in response to government efforts to intimidate them into censoring content or removing people the platforms don’t want having a large audience. However, it is worth considering that by having the government dictate social media platforms’ policies to them, a precedent of state control over information is being set that may have sinister consequences in the future. This consideration is especially salient when considering that the ban on ‘de-boosting’ accounts within social media algorithms will require an incredible amount of oversight and micromanagement to determine when de-boosting has occurred and what remedies are appropriate, and it would give government a far-greater active presence in the day-to-day activities of social media platforms.
While the impulses that led to support for laws barring social media platforms from banning, censoring, or de-boosting accounts is understandable and may even be conceived as a check on inappropriate government intervention, these laws are the wrong way to go about constraining state power. Not only could they constitute a taking of private property by violating the right to exclude, but the laws also create a new organ of state power that cannot be reliably contained.