Sao Paulo
The Supreme Court of the United States begins this Monday (26) to evaluate two lawsuits that will decide the future of social networks. The highest court in the United States will analyze challenges to laws passed in Texas and Florida in 2021 that lawmakers said were intended to combat what lawmakers said were alleged censorship of conservative voices by big tech companies.
Florida law prohibits social networks from blocking candidates for political office and “hiding” their posts. Texas law prevents companies from discriminating against users based on their “viewpoints.” At stake is the ability of social networks to moderate content.
That means the Supreme Court will decide whether Facebook, YouTube, X and TikTok are more like phones and trains or newspapers.
The court may accept the Texas and Florida governments' argument that social networks are nonprofit businesses that provide essential services and must serve all citizens equally and without discrimination just as a railroad cannot prevent a person from riding the train Your political position and a telephone company cannot reduce the volume of calls from people with certain characteristics.
In this case, companies could be prevented from removing posts from, for example, people who deny the effectiveness of vaccines or question the existence of the Holocaust.
The court could also go in the opposite direction and rule that social networks are not a public utility because users have options if they don't like X, they can turn to networks like Truth Social or Gab, for example. In other words, in this scenario, the networks function like newspapers, which have the right to make editorial decisions about what content they broadcast or not and how prominently they publish each news item. In this case, they can remove videos that advocate anorexia or suicide and praise Adolf Hitler content that is not necessarily illegal but violates the platform's usage rules.
The cases before the Supreme Court are another expression of polarization in the United States. The laws in Texas and Florida assume that social networks censor conservatives, discriminate against rightwing politicians and promote more progressive content.
The Florida law, signed into law by Governor Ron DeSantis in May 2021, was a direct response to Donald Trump's suspension of Twitter and Facebook. The nowformer president was banned from networks for broadcasting content that incited violence and contributed to the attacks on the Capitol on January 6, 2021, in which his supporters sought to overturn the result of the 2020 presidential election that gave Joe Biden victory brought to be undone. The invasion left five people dead in Washington and is considered the worst attack on US democracy in its modern history.
“Many in our state have already suffered from censorship and other tyrannies in Cuba and Venezuela. “When Big Tech censors inconsistently apply their rules to discriminate against Silicon Valley’s dominant ideology, they will be held accountable now,” DeSantis said at the time of the sanction.
In addition to banning “deplatforming” candidates, the law requires every company to publish the criteria used to moderate content and also allows Florida residents to sue big tech companies.
Three days after the governor passed the law, NetChoice, an association that brings together companies such as Meta, Google and TikTok, filed a lawsuit demanding that the law be suspended. The argument is that it violates the First Amendment of the U.S. Constitution, which protects freedom of speech in this case, the freedom of private companies to decide what expression they will or will not allow without government interference.
“This is a frontal attack on the First Amendment and a government intrusion into the free market of ideas, something that would be unthinkable for traditional media, bookstores and libraries,” the company said. “Just as Florida can’t tell the New York Times what editorials to publish or Fox News what interviews to air, it can’t tell Facebook or YouTube what content to distribute.”
The Biden administration, which usually pushes for greater regulation of big tech companies, sided with the platforms this time.
After a district court issued an injunction suspending enforcement of the law, Florida's attorney general appealed to the Court of Appeals, which upheld the injunction prompting the state of Florida to appeal to the Supreme Court.
The Texas law was enacted in September 2021. It prohibits censorship based on the user's viewpoint or location. “Like the telegraph companies of old, social media giants are using their control of the modern public space to direct and suppress public debate,” said Republican Partyaffiliated Texas Attorney General Ken Paxton.
Less than two weeks after the Texas law was passed, NetChoice filed a new lawsuit challenging the law, also relying on the First Amendment. A district court blocked the law, but Paxton appealed and an appeals court reinstated the law. The company representing the companies appealed to the Supreme Court.
The Supreme Court justices begin oral argument this Monday, but the final decision is not expected until June or July. Whatever the ruling, it will have implications for internet regulation in general.
If they decide to comply with the laws, it would significantly limit the companies' ability to moderate content and could make social networks even more toxic.
Assuming that the companies are not of public benefit or that the laws violate the platforms' freedom of speech, this could make many other attempts to regulate big tech companies unfeasible.