On free speech, federalism, and why Berenson v. Twitter matters more than ever

We cannot depend on Elon Musk and his billions to protect our Constitutional rights.

The United States government is unthinkably powerful, a $6 trillion leviathan: the biggest health insurer in the world and the deadliest war machine.

But the geniuses who made America understood the risks of allowing a single government entity to have too much power. They intended strong states as counterweights to the national government.

The 10th Amendment makes this restraint explicit: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Over time, though, the federal government has taken power at the expense of the states. Some of this shift was inevitable, a reaction to the growth in powerful multinational companies and wars that raged globally, hot and cold.

Still, the Constitution and its limits remain.

Those limits proved particularly useful during Covid.

Without them, Florida governor Ron DeSantis could never have allowed his state to remain open, providing crucial real-world evidence of the uselessness of lockdowns. (Two years in, Florida has fewer deaths per-capita than hard lockdown states like Michigan, Pennsylvania, New York, and New Jersey, despite a much older population.)

Now, for the first time in generations, legal scholars on the left and right are wondering if the tilt towards federal power has gone too far. Earlier this month, Michael Li - a lawyer at the left-leaning Brennan Center for Justice - told the New York Times that state courts were taking center stage in battles over voting rights:

There’s a renewed interest in this rich vein of state constitutional law and state constitutional tradition that many people had ignored, because as lawyers, we’ve been training for 60 years that the federal court is where we’re going to vindicate rights,” Mr. Li said. “And we’ve sort of tended to treat state courts and state constitutions almost as a stepchild. And then, we’re realizing there’s actually a lot there.

On the other side, conservatives are trying to make abortion rights an issue in which states rather than the federal government have the final say - and nearly everyone now seems to believe they will convince the Supreme Court to overturn Roe v Wade.

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Why does this matter to me - or you, or anyone who uses Twitter or Facebook or YouTube?

I’m writing this on my way to San Francisco for the first hearing in Berenson v. Twitter. San Francisco, as you may know, is in California. And California has some of the strongest free-speech protections of any state. Yes, California, ultra-liberal California.

The free speech guarantee in California constitution makes the First Amendment look weak. Section 2 of Article 1 (behind only Section 1, “All people are by nature free and independent…”) reads:

Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

And California courts have interpreted this provision not just against state and local governments, but against corporations. California has a long history of decisions requiring large private companies to allow speech on their properties.

In a 2000 decision called Gerawan Farming v. Lyons, the California Supreme Court ruled that the state’s protection for free speech “runs against the world, including private parties as well as governmental actors.”

(Yes, before liberals hated free speech, they loved it.)

Twitter doesn’t like the decision in Gerawan, or several others. And it doesn’t like a California law called 2168, also central to Berenson v Twitter, that it makes clear it is a “common carrier” and has no right to turn down tweets. It has offered a bunch of reasons they shouldn’t and don’t apply to it.

Imma tell you a secret: They should, and they do. I urge you to read James Lawrence’s incredibly well written response to Twitter’s motion to dismiss in Berenson v. Twitter and see for yourself. (Then read Twitter’s response to that motion, too, and see if it stacks up.)

Imma tell you another secret: Twitter’s best defense against California law is one it has carefully avoided making. Its best defense is a legal doctrine called preemption, which says that federal law - in this case, the federal law known as Section 230, which gives Twitter powerful protection for its decisions to ban users - overrides state law and even state constitutions.

Why doesn’t Twitter want to play its strongest card?

Because the little bird, and all the other social media companies, don’t want the Supreme Court anywhere near Section 230. They very much like the way lower courts - especially the federal 9th Circuit, which includes California - have interpreted 230 so far.

But if they rely on federal protection to overcome state law, they are creating a case the Supreme Court may find… very interesting, one with both implications for both the First Amendment and federalism.

So Twitter is whistling past a legal graveyard. These cases have generally gone poorly for plaintiffs. But my case is stronger than any that’s come before. In part, that’s because of the plain fact that a Twitter executive actually encouraged me to post (“debate… should continue,” he wrote). But it’s also because no lawyer has so clearly argued the state law and constitutional questions until now - and because the pressure for a reconsideration of these bigger issues is growing.

Sometimes a case meets a moment.

I don’t know if this is one of those times. What I do know is that even if Elon Musk’s takeover of Twitter goes through, the fight around censorship on social media platforms will not end. Twitter is a vital platform for journalism, but its audience is far smaller than that of Facebook or YouTube, which have censored even more remorselessly. Even Elon is not rich enough to buy those companies.

And in any case, while I hope and believe Elon’s motives are pure (at least in this case), free speech is a (state and federal) constitutional right, at the core of our freedoms - it cannot depend on the whim of a billionaire.

The hearing is at 8 a.m. tomorrow before Judge William H. Alsup.

Wish us luck.