Regardless of its form, Big Tech’s prolonged addiction to censorship reveals a market failure. In other industries, the remedy would be competition. If barred from one road on the way to work, why not take another? Due to network effects and myriad anti-competitive practices, a small number of successful social media companies today function as oligopolies, able to work together to throttle your access to all viable roads at their discretion. Twitter bypassed the censorship problem because an eccentric billionaire mortgaged himself for his beliefs. We should not expect more calvary like Elon Musk in the Silicon Valley. //

Perhaps the most important assumption in these questions that could decide this case is, whose speech is whose on social media? When Grandma posts on Facebook, does the statement belong to her as the author or to the website as a publisher whose algorithm inserted it into your feed? NetChoice argues that Grandma’s story belongs to Facebook and, therefore, Facebook receives First Amendment rights for choosing to feature or censor her comments through its editorial discretion. //

However, even if the vast majority of Americans are incorrect and social media websites can claim your speech as their own to protect their right to censor, these companies are hypocrites every time they invoke what is called Section 230 to protect themselves. This is a 1996 statute meant to shield nascent online platforms from the liabilities of being a publisher. For example, if something illegal was posted on Myspace, the website was protected because it was not Myspace’s speech.

Yet today, Big Tech is telling us that they deserve to have it both ways—that posts on social media are simultaneously the platforms’ (to benefit from First Amendment protections) and not the platforms’ (to benefit from Section 230 protections).

If no other institution, logic, or physical law of the universe has this sort of bold inconsistency, I am skeptical of Big Tech’s entitlement to it. Only last year, Google was in the Supreme Court arguing that YouTube’s targeted recommendations to users were not editorial speech and, therefore, merited Section 230 protections, contradicting this year’s NetChoice legal arguments.