Why the Upcoming Supreme Court Ruling on Social Media Censorship Won’t Solve Its Real Problem
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News Analysis
The laws at the center of this case were passed in Texas and Florida in 2021.
Both originated from the same root concern: that social media providers such as Meta’s Facebook and Instagram, a pre-Elon Musk Twitter, Google’s YouTube, and others might be actively censoring certain political content. Mostly conservative-leaning politicians who were behind these laws correctly argued that, with people increasingly leaning on social media for news and entertainment content, the tech companies which provide that media could have an outsized role in influencing public opinion via decisions made about what content they would publish and what content they might prevent from distributing. They further argued, on a far more partisan level, that the tech companies were deliberately blocking posts representing more right-wing political viewpoints while letting more liberal perspectives slide through.
Whether that was true was less the point of these laws than that the two states wanted the power to regulate what the tech companies were doing regarding publishing various content.
The law in Texas was clear and strict in its directives for the tech companies. Aimed at large social media companies with over 50 million active users every day, it explicitly prohibits those companies from taking down posts based on the specific perspectives of the posts, images, or videos posted online in those accounts. Besides enabling the state to enforce this new regulation by demanding reasons why individual posts were removed, the legislation also allows individuals or groups who have found their posts blocked or removed on grounds such as that they violate the often-vague guidelines of the company to file lawsuits over the removal of their content.
Republican Governor Greg Abbott of Texas defended his law at the time as a proper means of dealing with what he called “a dangerous movement by social media companies to silence conservative viewpoints and ideas."
The Texas Law is Challenged at the Supreme Court a First Time in 2022
The Texas law was almost immediately challenged in a federal district court on behalf of the tech giants on the grounds that social media discourse was protected free speech under the First Amendment to the U.S. Constitution. The district court issued a temporary injunction blocking enforcement of the law, on the grounds that it probably was unconstitutional based on the First Amendment provision.
Texas appealed the case to the 5th U.S. Circuit Court of Appeals. By a narrow majority, that panel reversed the federal court decision by a narrow majority.
That caused the tech giants’ industry lobbying groups NetChoice and the Computer & Communications Industry Association to file for an emergency hearing before the U.S. Supreme Court to reinstate the district court’s ruling. It argued in its filings that if the law were allowed to be in place, it could allow hate speech such as those from white supremacists’ groups, Neo-Nazis, and Russian propagandists to go forward, despite the harm that speech could cause.
The lobbying groups also argued that tech giants’ acts of deciding what content they would allow to be published on their sites was no different from the act by a newspaper publisher to choose what gets distributed through its media outlet. Even the act of removing an article because it was found to be factually incorrect was considered justified, not just as a business decision but because a newspaper’s or tech companies’ decision as to what to publish should legally be theirs to decide on and not under the First Amendment.
The U.S. Supreme Court not only agreed to hear the case at the time but also expedited it for review. In May 2022, it ruled on the matter.
Legal experts were watching the case carefully, as Justice Clarence Thomas had sided in the past with a rising tide of conservative legal scholars that the tech companies should be considered more like telecom companies and regulated as common carriers rather than like newspapers in how they were regulated. But that is not how the first ruling in this case worked out.
In that earlier ruling, the Court decided to push the case back down to the 5th Circuit Court for a second review and reconsider its decision. The 5th Circuit did its reconsideration, which then directly contradicted a ruling by the 11th Circuit Court of Appeals which found laws like that of Texas as fully compliant with the U.S. Constitution.
With such a contradiction in rulings between two courts of the same level in place, that opened the door for the Supreme Court to take up the case again to resolve the issue.
The hearing before the Supreme Court yesterday also involved a Florida law, also passed in 2021, which had similar provisions to the Texas law. It too has been enjoined in litigation there, resulting in it being appealed all the way to the U.S. Supreme Court to review. Although the laws are slightly different in structure and authority given the state, they were similar enough for the Court to choose to consolidate the cases and decide on the central issue for both.
The case is of high importance at this moment, in a year where unregulated political content with deepfake posts expected to fill social media in this presidential election year. So when the Justices asked their questions this time, many were focused not just on what was happening at this moment but also because a ruling on the case is expected to come down just four months from now, right as the political campaigns begin to heat up.
Though the Justices yesterday were cautious about offering too strong a set of opinions from the bench, many of the comments suggested which direction they might be leaning.
Chief Justice John G. Roberts offered up one of the most pointed of questions, when he noted that one of the issues the decision in the case will turn on is whether government at either the state of federal level should be able to decide who should be allowed to “speak” via any particular social media platform, or whether that power should be relegated to the social media providers. That concern operates at potentially an even higher level of self-regulation by the tech companies than even the nature of the content the individual doing the posting might put up.
“The First Amendment restricts what the government can do, and what the government is doing here is saying, you must do this, you must carry these people; you’ve got to explain if you don’t,” Roberts said during the hearing about what the laws were attempting to dictate. “That’s not the First Amendment.”
Justice Clarence Thomas, the one Justice who has gone on record in the past as arguing the tech companies should be far more tightly regulated than they are now, took a strongly opposing position on the matter. After listening to the tech companies’ lawyers argue that those companies should have a right to “editorial discretion” as to what they allow to be put up on their media, he pointed out that this position was a direct contradiction to their past insistence that they should have immunity from lawsuits filed against them for what ends up posted on their sites.
That previous argument by the tech companies came when changes were being proposed – in legislative chambers -- that Section 230 of the 1996 Communications Decency Act should be amended to hold the tech companies more responsible for the content they allow. At the time, Thomas pointed out yesterday, the tech companies argued they were “merely a conduit” for what was being expressed.
Now, however, Thomas went on, the tech companies were wrapping themselves in the argument that what they were doing in blocking individuals and post content was “expressive conduct” with actions protected as free speech.
Paul Clement, an attorney representing NetChoice, challenged Thomas’ assertion about Section 230 of the Communications Decency Act. He said instead that “the whole point” of that section of the act was to “essentially exercise editorial discretion” in removing potential damaging content without fear of being sued for doing so, precisely on the alleged discrimination grounds the Texas and Florida laws were attempting put into force.
Justice Sonia Sotomayor, one of the liberal justices on the court, was one of the few on the Court who had a far less unequivocal position regarding the constitutionality of both the Texas and Florida laws.
“They are so broad that they stifle speech just on their face,” she said during the hearings.
With the various comments aggregated, it seemed the Court was learning toward ruling in favor of blocking the two laws, though probably not as a unanimous verdict and perhaps without invalidating the entirety of both laws. Comments from the bench suggested that the court might rule that it is legal for states to block the removal of users or content from sites such as Gmail, for example. In another argument which was brought up, it was also suggested there may be cases where e-commerce and transportation sites such as Amazon and Uber might be prohibited from blocking comments of certain kinds from their sites.
Solicitor General Elizabeth B. Prelogar, representing the White House position on the matter, lobbied for the Supreme Court to rule narrowly rather than broadly on this case for now. She offered that perhaps the Court might choose to rule only that states do not have the right to intervene regarding content placement on first amendment grounds, rather than make a broader statement as to the nature of the content being placed, and whether states had some rights to regulate that. That would allow the White House to fight for a clearer federal law regarding that second issue in the future.
For the White House this is a significant issue, as previous court decisions had declared that the government cannot twist the arms of social media companies to either just support or actively insert certain types of content into social media. At the time, those rulings were related primarily to the government attempting to encourage/force social media companies to support the government party lines about people needing to take the coronavirus vaccines, despite growing evidence that the risk of taking the vaccines far outweighed the benefits of taking them for most.
Though the White House was ordered to stand down on this issue, it is clear the Biden administration has a strong interest in manipulating social media content to its benefit on multiple issues, including for example ensuring social media strongly supports the U.S.’s strong support of Israel’s genocidal war in Israel. It therefore has a strong interest in having the Supreme Court narrowing its current decision so the Biden team can have a chance to push through alternate laws which support its attempts to manipulate social media for its own ends.
When the decision from the Court comes down, one thing it will never consider is the far more serious issue at stake here, which is that just a handful of social media enterprises control the channel for news and related information supplied to most Americans on a daily basis. That means that those companies’ biases, including not just on current affairs but also regarding policies regarding big business, antitrust issues, equal protection under the law, and politics, have a gargantuan impact on what gets fed to the public and on the opinions the public holds.
As just one example of how this plays out, consider how those handful of social media companies are actively promoting distribution of content in support of Israel’s savage war against the Palestinian people in Gaza, while also actively restricting material which would support the Palestinian cause. Or alternatively consider how media of all kinds has convinced most people identifying as Republicans that the 2020 presidential elections were fraudulent, a data point supported by multiple polls.
The Supreme Court ruling expected in the current case will do nothing about this, just as the laws Texas and Florida themselves which claimed they were acting in the public interest had far too heavily-loaded a political agenda to allow states to do something about it.
What is needed is an alternative to conventional social media, something unique and creative enough to challenge the tech giants’ offerings, while also working on how to encourage users to re-engage their minds in critical thinking on the issues of the day. The day that happens could not come soon enough for all. Fortunately, a new social media platform is under development that will exclude bots, trolls, social engineering and government censorship. It is intended for professionals only and it is called Wetopia. It is a powerful social media, collaboration and project management platform that will initially be by invitation only. It is scheduled to go live on May Day (May 1).