Former Biden adviser's op-ed lambasted for claim that the 'First Amendment is out of control'

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Supreme Court sends social media First Amendment case back to lower courts

Fox News' Shannon Bream explains the details of the unanimous ruling on the case that addresses whether social media platforms' handling of user content is protected by the First Amendment.

A guest essay, "The First Amendment Is Out Of Control," published in The New York Times on Tuesday was swiftly criticized on social media. 

Tim Wu, a Columbia University law professor and former special assistant to President Biden on the National Economic Council, wrote that "The First Amendment was a tool that helped the underdog."

The guest essay focused on the Supreme Court's decision to send back to lower courts challenges to Florida and Texas laws that restrict how large social media companies moderate user content. Conservatives, among others, on social media questioned the headline and mocked the piece.

"The judiciary needs to realize that the First Amendment is spinning out of control. It is beginning to threaten many of the essential jobs of the state, such as protecting national security and the safety and privacy of its citizens," Wu wrote. "Sometime in this century the judiciary lost the plot. Judges have transmuted a constitutional provision meant to protect unpopular opinion into an all-purpose tool of legislative nullification that now mostly protects corporate interests. Nearly any law that has to do with the movement of information can be attacked in the name of the First Amendment." 

A New York Times opinion headline about the First Amendment was swiftly criticized on social media on Tuesday, July 2, 2024.  (Gary Hershorn/Getty Images/ Screenshot/NewYorkTimes)

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"Surely the New York Times doesn't want the First Amendment repealed or narrowed—unless it's granted special privileges that others don't have," Sen. Mike Lee, R-UT., posted on X. 

"The New York Times is attacking *your* freedom of speech," billionaire Elon Musk wrote.

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The president of the Foundation for Individual Rights and Expression (FIRE) responded to part of Wu's piece. 

"Fear of government power over the free flow of information was a big part of the reason why ‘congress shall make no law.’ Indeed, that's also a big part of why the founders included ‘the press’ in 1A, by which they didn't mean institutional journalism, they meant the literal biggest information moving technology of the day: the printing press," Greg Lukianoff said. 

The Texas and Florida laws require Big Tech companies like X (formerly Twitter) and Facebook to host third-party communications but prevent those businesses from blocking or removing users' posts based on political viewpoints.

In a unanimous ruling on Monday, the court said lower courts did not properly analyze the First Amendment issues at play in the case. As a result, each will go back to its respective Circuit Court of Appeals.

"Today, we vacate both decisions for reasons separate from the First Amendment merits, because neither Court of Appeals properly considered the facial nature of NetChoice’s challenge. The courts mainly addressed what the parties had focused on. And the parties mainly argued these cases as if the laws applied only to the curated feeds offered by the largest and most paradigmatic social-media platforms—as if, say, each case presented an as-applied challenge brought by Facebook protesting its loss of control over the content of its News Feed," the court wrote.

"Out of all the groups, shouldn't the @nytimes support the First Amendment more than anyone?" the House Judiciary GOP account on X wrote. 

Conservative commentator Ian Miles Cheong wrote that Wu was saying the quiet party out loud. 

"They want censorship. Big time," he said. 

Committee to Unleash Prosperity President Phil Kerpin also said the headline on Wu's piece says "the quiet part loud."

Wu argued that the Supreme Court's reasoning in both the Texas and Florida cases, which were brought by NetChoice, "marks a new threat to a core function of the state."

"By presuming that free speech protections apply to a tech company’s ‘curation’ of content, even when that curation involves no human judgment, the Supreme Court weakens the ability of the government to regulate so-called common carriers like railroads and airlines — a traditional state function since medieval times," Wu wrote in the op-ed.

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Fox News' Brianna Herlihy and Anders Hagstrom contributed to this report.