What are social networks most similar to? Are they like a telephone? Or are they like a newspaper? The telephone company cannot intervene in the conversations of its users. On the other hand, the editor of a newspaper does have some power over what is published on its pages. Are the owners of Facebook, YouTube, X, Instagram or TikTok telephone companies or press publishers? In reality they are neither one nor the other, and that's the complicated thing. For this reason, when the Supreme Court of the United States addressed this Monday the scope of freedom of expression in relation to social networks, it was noted that any doctrine in this regard is “a minefield,” as the judge very vividly said. Amy Coney Barrett. Still, the judges seemed largely inclined to respect the content moderation guidelines.
Months after judges upheld tech companies' disclaimers of liability for content posted by their users, social networks returned to the Supreme Court. This time, the platforms' own content moderation policies were discussed. The states of Texas and Florida, both with Republican majorities, passed laws against the policy, arguing that they imposed censorship on their users by silencing conservative voices, such as those defending the electoral hoax that the election or Donald Trump had been stolen. who published misinformation about vaccines.
The two parties, the states and the platforms, wrap themselves in the banner of free speech, which enshrines the First Amendment against government interference. Texas and Florida are considering bans on hurtful messages and users; The platforms represented by industry associations denounce that it is these laws that violate them by preventing them from deciding for themselves what they want to publish on their platforms. For states, social networks are more like telephones; for the platforms, more like newspapers.
The Supreme Court's decision is extremely important for the future of social networks and the content they distribute. Preventing content moderation policies can lead to a rapid rise in disinformation and hate speech. This happened at least temporarily on X, the old Twitter, after its new owner, Elon Musk, abandoned most efforts to combat it, which in turn led to a flight of advertisers.
During the two hearings this Monday, one on each state's law, the Supreme Court justices showed different sensitivities on the matter. Trying to figure out what they will decide is always a risky sport, but experts were inclined to believe the majority would support the platforms' right to moderate their content.
“Florida’s efforts to level the playing field and combat Big Tech’s perceived bias repeatedly violate the First Amendment,” said Paul Clement, an attorney for the platforms in one of the cases. “It impairs editorial discretion.” Forces people to speak. Discrimination based on content, speaker and point of view. And all of this is done in the name of promoting freedom of expression, but loses sight of the first principle of the First Amendment, which applies only to the actions of the state,” he added.
However, Aaron Nielson, representing Texas, went beyond the phone to the Telegraph: “This is not the first time new technologies have been used to suppress speech.” The Telegraphs also discriminated based on their viewpoint, sparking a nationwide scandal. However, according to the platform theory, Western Union limited itself to making editorial decisions so as not to spread opinions favorable to the unions. Today, millions of Americans neither visit friends or family nor go to work in person. Everyone is online. The modern public square. However, if the platforms that passively host the speech of billions of people are themselves the speakers and can discriminate, there will be no significant public space.”
Shortly after conservative Justice Samuel Alito pointed out the Orwellian temptation of platforms in the Florida case, Brett Kavanaugh, also conservative but more moderate, responded: “When I think 'Orwellian,' I think of the state, not the private sector,” not by individuals.” And in a criticism of the Texas and Florida laws, he has cited Supreme Court case law that says: “The concept that the government can restrict the expression of some elements of our society to the relative voice Empowering others is “completely alien to the First Amendment.”
And Supreme Court Chief Justice John Roberts himself expressed skepticism of Florida's arguments: “You began your presentation by talking about concerns about power, market power and the ability of social media platforms to control what the People do and what they do.” “The response to this will be to exercise the power of the state to control what happens on social media platforms,” he has shown. “As we talk about the First Amendment, I wonder whether our first concern should be for the state to regulate what, as you know, we have called the modern public square,” he continued.
Other judges expressed similar sentiments. Justice Kagan has asked why preventing disinformation about elections or health issues, or messages of hate or harassment from being posted on a platform should not be considered free speech.
The laws (whose content is similar but have their own nuances) have already been challenged in federal court, with conflicting results: One ruling struck down the Florida law, while another upheld the Texas law, so it seemed clear that the Supreme Court doing so would admit to unifying the doctrine in this regard. The Supreme Court judges temporarily suspended the application of the law last year in a decision by five votes to four. The Supreme Court has a majority of six conservative justices compared to three progressive ones.
Censorship euphemism
The most conservative justices, Clarence Thomas and Samuel Alito, were the ones most sympathetic to the laws. “As far as I know, they are censoring, and I am not aware of any free speech right that could censor other speech,” Thomas said in the Florida case. And clearly Justice Alito doesn't have much sympathy for the idea of content moderation: “Is this more than a euphemism for censorship?” Let me ask you this: If in 1917 someone was prosecuted and imprisoned for their opposition to the United States' participation in World War I “Was that content moderation?” he snapped at the platforms’ lawyer, also in the Florida case.
However, some judges have expressed doubts about whether their ruling should be applicable to every platform and in every situation. “Does Gmail have the right under the First Amendment to, for example, delete Tucker Carlson’s Gmail accounts?” [conservador] or Rachel Maddow [progresista] “If you don’t agree with his views?” Alito asked. The platforms' lawyer has argued that this is the case, although he has made it clear that this is not the crux of this case.
And they have also considered how to make this freedom of editorial expression to moderate content compatible with the exemption from liability for content posted by users, known as Section 230. “The Section 230 argument was that you're just an intermediary, what.” That was the case in the '90s and perhaps the early 2000s. Now you say that you pay attention to editorial discretion and expressive behavior. Doesn’t that seem to undermine your Section 230 argument,” Thomas said.
And hence partly the doubts. “I think there are a lot of minefields. And if that's a mine, if we say that it's speech entitled to First Amendment protection, then I think that has implications in Section 230 on a different case, so it always says, ” It's hard to write a sentence when you…” “You know there could be minefields that would affect other things down the road,” said Coney Barret, a conservative. In June it will be known how the judges drew these mines.
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