Should social media platforms have the right to restrict political speech?

The Supreme Court will consider the constitutionality of controversial laws in Texas and Florida that would regulate how large social media companies like Facebook and X (formerly known as Twitter) control content posted on their sites. The laws were enacted in 2021 in response to legislators’ beliefs that the companies were censoring their users, particularly those with conservative views; the companies contend that the laws violate their First Amendment rights. (https://www.scotusblog.com/2023/09/justices-take-major-florida-and-texas-social-media-cases/)

Social media has revolutionized the way that we access news and information. Before social media, newspapers, radio, and television were the primary ways that people kept up with current events. These forms of media controlled not only which news stories were presented to the public; they also created the content itself. Because broadcast and print media were essentially the publisher or content creators, they could be held responsible for false or even harmful content.

In contrast, social media companies do not create content, but are merely platforms for content that is produced by individual users. Legislation like 47 U.S.C. § 230, a portion of the federal Communications Decency Act of 1996, has historically provided social media companies with protection from liability about the content posted by individuals utilizing their platforms. But in NetChoice, LLC et al. v. Paxton, LLC et al. and Moody v. NetChoice, LLC et al., the Fifth and Eleventh Circuits respectively have raised serious questions over whether the social media platforms should be restricting content and, if so, to what extent. These cases involve social media companies that restricted content they deemed false or harmful, including some forms of political speech.

The FBA invites students to consider the question: “Should social media platforms have the right to restrict political speech?” Imagine you are a Supreme Court Justice; How would you rule on this issue? Your essay submission should:

  1. State your decision
  2. Present your best arguments in support of your decision
  3. Cite relevant sources, statutes, cases and/or historical events that support your position

Resources

On September 29, 2023, the Supreme Court of the United States (SCOTUS) accepted petitions challenging the constitutionality of social media laws in Florida and Texas. Florida’s law, S.B. 7072, prohibits “a social media platform from willfully deplatforming a [political] candidate.” Texas’s law, H.B. 20, refers to social media platforms as “common carriers” that are “central public forums for public debate,” and requires common carriers to publicly disclose information related to the common carrier’s method of recommending content to users, content moderation efforts, use of algorithms to determine search results, and the common carrier’s ordinary disclosures to its users on user performance data for each of its platforms. Both of these laws were challenged by NetChoice, LLC, a national trade association of large online businesses, who had recent successes in blocking several laws, including the California Age-Appropriate Design Code and a similar social media law in Arkansas.
https://www.huntonprivacyblog.com/2023/10/05/u-s-supreme-court-will-examine-constitutionality-of-florida-and-texas-social-media-laws/, accessed Nov. 8, 2023

Section 230 of the 1996 Communications Decency Act states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
https://www.pbs.org/newshour/politics/what-you-should-know-about-section-230-the-rule-that-shaped-todays-internet, accessed Nov. 8, 2023

“The question presented is whether the First Amendment prohibits viewpoint-, content-, or speaker-based laws restricting select websites from engaging in editorial choices about whether, and how, to publish and disseminate speech—or otherwise burdening those editorial choices through onerous operational and disclosure requirements.”
https://ballotpedia.org/NetChoice,_LLC_v._Paxton, accessed Nov. 8, 2023

Case Facts

NetChoice v. Attorney General of Florida

Two trade associations that represent internet and social-media companies sued Florida officials, seeking to enjoin enforcement of sections of state law which imposes content moderation restrictions on social media platforms. The plaintiffs argue that the law’s provisions (1) violate the social-media companies’ right to free speech under the First Amendment and (2) are preempted by federal law.
https://law.justia.com/cases/federal/appellate-courts/ca11/21-12355/21-12355-2022-05-23.html, accessed Nov. 8, 2023.

The State of Florida enacted S.B. 7072 to address what it perceives as bias and censorship by large social media platforms against conservative voices.

Social-media platforms collect third-party posts, including text, photos, and videos, and distribute them to other users. Importantly, they are private enterprises, not governmental entities, and thus are not subject to constitutional requirements for free speech. Users have no obligation to consume or contribute to the content on these platforms. And unlike traditional media, social-media platforms primarily host content created by individual users rather than the companies themselves (although they do engage in some speech of their own, such as publishing terms of service and community standards). They are not merely conduits of that content, however; they curate and edit the content that users see, which involves removing posts that violate community standards and prioritizing posts based on various factors.

The State of Florida enacted S.B. 7072 to address what it perceives as bias and censorship by large social media platforms against conservative voices. The legislation imposes various restrictions and obligations on social media platforms, such as prohibiting the deplatforming of political candidates and requiring detailed disclosures about content moderation policies. It aims to treat social media platforms like common carriers and focuses on those platforms that either have annual gross revenues exceeding $100 million or at least 100 million monthly individual participants globally. Enforcement mechanisms include substantial fines and the option for civil suits.

NetChoice and the Computer & Communications Industry Association (together, “NetChoice”)—are trade associations that represent internet and social-media companies like Facebook, Twitter, Google (which owns YouTube), and TikTok. They sued the Florida officials charged with enforcing S.B. 7072 under 42 U.S.C. § 1983, alleging that the law’s provisions (1) violate the social-media companies’ right to free speech under the First Amendment and (2) are preempted by federal law.

The district court granted NetChoice’s motion for a preliminary injunction, concluding that the provisions of the Act that make platforms liable for removing or deprioritizing content are likely preempted by federal law, specifically 47 U.S.C. § 230(c)(2), and that the Act’s provisions infringe on platforms’ First Amendment rights by restricting their “editorial judgment.” The court applied strict scrutiny due to the Act’s viewpoint-based purpose of defending conservative speech from perceived liberal bias in big tech. The court found that the Act does not survive strict scrutiny as it isn’t narrowly tailored and doesn’t serve a legitimate state interest. The State appealed, and the U.S. Court of Appeals for the Eleventh Circuit affirmed these conclusions.
https://www.oyez.org/cases/2023/22-277

In September 29th, 2023, the Supreme Court granted certiorari to NetChoice v. Attorney General[1] and NetChoice v. Paxton[2], cases from Florida and Texas in which the trade associations Net Choice and the Computer and Communications Industry Association challenged the states’ new content moderation laws. In 2021, Florida[3] and Texas[4] passed laws restricting social media companies’ ability to moderate content. Both statutes dictate that, among other things, social media companies cannot remove content based on users’ viewpoints, nor can they ban politicians from their platforms.[5] The Eleventh Circuit interpreted content moderation to be a form of speech protected by the First Amendment and struck down most of Florida’s law finding it was substantially likely to violate a company’s right to free speech.[6]  The Fifth Circuit upheld Texas’ law stating that content moderation is not protected by the First Amendment but rather is “censorship” that states may regulate.[7] This blog will explore how these cases intersect with legislation like Section 230, how they fit within the conservative judicial activist landscape, and their effects on companies beyond the traditional social media companies.
https://aublr.org/2023/10/the-supreme-court-gets-moody-scotus-to-settle-the-circuit-split-on-content-moderation-and-the-first-amendment/, accessed Nov. 8, 2023

NetChoice v. Paxton

Issue: Whether the First Amendment prohibits viewpoint-, content-, or speaker-based laws restricting select websites from engaging in editorial choices about whether, and how, to publish and disseminate speech — or otherwise burdening those editorial choices through onerous operational and disclosure requirements.

NetChoice and the Computer & Communications Industry Association filed a lawsuit against the Attorney General of Texas, challenging two provisions of the law as unconstitutional: (1) Section 7, which prohibits viewpoint-based censorship of users’ posts, except for content that incites criminal activity or is unlawful.

The State of Texas enacted HB 20 to regulate large social media platforms, such as Facebook, X (formerly known as Twitter), and YouTube. The law purports to prohibit large social media platforms from censoring speech based on the viewpoint of the speaker.

NetChoice and the Computer & Communications Industry Association filed a lawsuit against the Attorney General of Texas, challenging two provisions of the law as unconstitutional: (1) Section 7, which prohibits viewpoint-based censorship of users’ posts, except for content that incites criminal activity or is unlawful. (2) Section 2, which requires platforms to disclose how they moderate and promote content, publish an “acceptable use policy,” and maintain a complaint-and-appeal system for their users.

The district court issued a preliminary injunction, holding that Section 7 and Section 2 are facially unconstitutional. The court argued that social media platforms have some level of editorial discretion protected by the First Amendment, and HB 20 interferes with that discretion. On appeal, the U.S. Court of Appeals for the Fifth Circuit reversed, rejecting the idea that large corporations have a “freewheeling” First Amendment right to censor what people say. It reasoned that HB 20 does not regulate the platforms’ speech but protects other people’s speech and regulates the platforms’ conduct.

Do Texas HB 20’s provisions prohibiting social media platforms from censoring users’ content and imposing stringent disclosure requirements violate the First Amendment?
https://www.oyez.org/cases/2023/22-555, accessed Nov. 8, 2023