Two cases are currently being debated in the Supreme Court of the United States, both of which have the potential to change how speech is regulated online.
House Bill 20 was enacted Sept. 9, 2021 by Texas state legislators and aims to prohibit large social media platforms — such as Facebook, X and YouTube — from censoring viewpoint-based content, according to Oyez. It is designed to prevent discrimination against online content that contains a specific view held about a subject matter.
This law was challenged by NetChoice and the Computer & Communications Industry Association, who argued that large social media platforms are protected by the First Amendment to regulate content on their platform to their own discretion.
In Florida, Senate Bill 7072 was enacted May 25, 2021 as a way to confront the perceived biases conservative users face on social media. This law prohibits social media platforms — specifically those that either have annual gross revenues exceeding $100 million or at least 100 million monthly individual participants globally — from de-platforming political candidates and requires the disclosure of their content moderation policies, according to Oyez.
NetChoice and the CCIA also challenged this law, claiming it violated First Amendment rights.
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Both cases argue social media platforms have become influential enough to the point that states should protect citizens’ rights to expression by prohibiting these platforms from censoring all speech online. Essentially, these cases have huge implications in regards to the future of social media platforms, according to University of Wisconsin School of Journalism Director Kathleen Culver.
“[These cases are] aimed at these companies not being able to moderate content based on viewpoint, but the problem is that those companies moderate content based on viewpoint every second of every minute of every hour of every day, every week of every month of the year, millions and millions of times,” Culver said. “So what the companies say is, if we cannot moderate based on viewpoint we essentially will have to go dark because we will be forced to be associated with speech that we don’t want to be associated with.”
According to UW professor of American politics Howard Schweber, both these laws were established in response to a fear that conservative voices were unfairly silenced across social media platforms.
Another major concern relates to the content that is spread in regards to election processes. According to Pew Research Center, there has been an observed trend of increasing distrust in the election process which may only grow in severity if content is unregulated by social media platforms.
“If the Supreme Court rules in favor of Texas and Florida the best way I can put it is that the internet will be even more of a cesspool than it is today,” Schweber said.
Unlike other media sources, social media platforms are uniquely protected from liability if an individual were to post threatening, hateful or defaming information, according to Schweber. A person may threaten the president in an online post and the social media platform will not be deemed liable, but if a newspaper were to allow that message to be printed in an editorial it would not be protected in court.
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Social media receives this protection under Section 230 of the Communications Decency Act, a federal law. This section established immunity for social media platforms for content they host but do not themselves generate, Schweber said. The reasoning behind this was because of the fear that social media platforms would not censor users enough.
This protection is due to social media not being considered a common carrier — a person or commercial enterprise that serves a common purpose and makes it known that their service is available to the general public. Importantly, this definition makes the distinction between private carriers that serve private interests and public ones, Schweber said. It is being argued that social media should be considered a common carrier because of the dominance these platforms hold over public affairs and thus should be required to accept all forms of content.
“It may be the case that private companies have managed to make themselves very important and very useful, but that doesn’t somehow transform them into serving a public function,” Schweber said. “So the special privileges that those kinds of companies got from the government were part of the explanation for why they should be asked to carry special burdens.”
As the U.S. heads into the 2024 election, social media companies’ ability to attract advertisers could depend on the Supreme Court’s rulings which are expected to be made by the end of June, according to reporting by Reuters.
