What are social networks more like? Are they like a telephone? Or are they like a newspaper? The telephone company cannot interfere in what its users say in a call. On the other hand, the editor of a newspaper does have power over what is published in 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 is what is complicated. 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 seen that any doctrine in this regard is “a minefield,” as Judge Amy Coney Barrett very graphically said. . Still, the judges seemed mostly inclined to respect content moderation policies.
Social networks have returned to the Supreme Court months after the magistrates maintained the technology companies’ exemption from liability over the content published by their users. This time it was the platforms’ own content moderation policies that were discussed. The states of Texas and Florida, both with a Republican majority, approved laws against these policies with the argument that they imposed censorship on their users by silencing conservative voices such as those who defended the electoral hoax that the elections or elections were stolen from Donald Trump. who published misinformation about vaccines.
The two parties, the States and the platforms, wrap themselves in the flag of freedom of expression that enshrines the First Amendment of the Constitution against state interference. Texas and Florida consider banning violating messages and users; The platforms, represented by sector associations, denounce that it is these laws that violate it by preventing them from choosing what to publish on their platforms. For States, social networks are more like telephones; for the platforms, more like newspapers.
The decision made by the Supreme Court has extraordinary importance for the future of social networks and the content they disseminate. Preventing content moderation policies can cause misinformation and hate speech to skyrocket. This has happened at least at times on X, the old Twitter, after its new owner, Elon Musk, abandoned most of the efforts to combat them, which in turn caused a flight of advertisers.
During the two hearings this Monday, one for the law of each State, the Supreme Court judges showed different sensitivities in this regard. Trying to figure out what they are going to decide is always a high-risk sport, but experts were inclined to think that the majority would support the platforms’ right to moderate their content.
“Florida’s effort to level the playing field and fight Big Tech’s perceived bias violates the First Amendment multiple times,” said Paul Clement, a lawyer for the platforms in one of the cases. “It interferes with editorial discretion. Forces to speak. Discriminates based on content, speaker, and point of view. And it does all this in the name of promoting freedom of expression, but it loses sight of the first principle of the First Amendment, which only applies to State action,” he added.
Aaron Nielson, representing Texas, on the other hand, went back beyond the telephone, to the telegraph: “This is not the first time that new technologies have been used to repress expression. The telegraphs also discriminated based on point of view, which caused a national scandal. However, according to the platform theory, Western Union was limited to making editorial decisions so as not to transmit opinions favorable to the unions. Today, millions of Americans don’t visit friends or family, or even 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 spokespersons and can discriminate, there will be no public square to speak of.”
Shortly after conservative judge Samuel Alito referred to the Orwellian temptation of platforms in the Florida case, the also conservative, but more moderate, Brett Kavanaugh, replied: “When I think of ‘Orwellian’, I think of the State , not in the private sector, not in individuals.” And, in a criticism of the laws of Texas and Florida, he has cited the Supreme Court’s jurisprudence, which states: “The concept that the Government can restrict the expression of some elements of our society to enhance the relative voice of others is totally foreign. to the First Amendment.”
And the Chief Justice of the Supreme Court himself, John Roberts, has been skeptical 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 people do, and their response to this is going to be the exercise of the power of the State to control what happens on social media platforms,” he pointed out. “I wonder, since we are talking about the First Amendment, if our first concern should be that the State regulate what, you know, we have called the modern public square,” he continued.
Other judges have expressed themselves along the same lines. Justice Kagan has asked why it should not be considered freedom of expression to prevent disinformation about elections or health issues or messages of hate or harassment from being published on a platform.
The laws (whose content is similar, but with their own nuances) have already been challenged before the federal courts, with contradictory results: one ruling annulled the Florida law, while another supported the Texas law, so it seemed clear that the Supreme Court would admit unify the doctrine in this regard. The judges of the High Court already provisionally suspended the application of the law last year, in a decision made by 5 votes to four. The Supreme Court has a majority of six conservative judges compared to three progressive ones.
Censorship euphemism
The most conservative justices, Clarence Thomas and Samuel Alito, are the ones who seemed most sympathetic to the laws. “From what I see, they are censoring, and I don’t know of any protected free speech right to censor other speech,” Thomas said in the Florida case. And clearly, Justice Alito is not very sympathetic to the idea of content moderation: “Is it anything more than a euphemism for censorship? Let me ask you this: if in 1917 someone was prosecuted and imprisoned for opposing the participation of the United States in World War I, was that content moderation?” he asked the platforms’ lawyer, also in the case of Florida. .
Some judges, however, have raised doubts about whether their ruling should be applicable to any platform in any situation. “Does Gmail have the right under the First Amendment to delete, say, Tucker Carlson’s Gmail accounts? [conservador] o Rachel Maddow [progresista] “If they don’t agree with his points of view?” Alito asked. The platforms’ lawyer has argued that it is, although he has clarified that this was not the core 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 published by users, known as section 230. “The argument under section 230 has been that you are simply a conduit, which was the case in the ’90s and perhaps the early 2000s. Now you are saying that you are involved in editorial discretion and expressive conduct. Doesn’t that seem to undermine your Section 230 arguments?” Thomas said.
And hence, in part, the doubts. “I think there are a lot of minefields. And if that’s a mine, if what we’re saying about this is that this is speech that’s entitled to First Amendment protection, I think then that has implications in Section 230 for another case, so it’s always “It is difficult to write a sentence when you know that there could be minefields that would affect other things later,” said Coney Barret, a conservative. In June it will be known how the judges have drawn those mines.