Supreme Court must step in to defend the editorial rights of social media platforms
Can the government dictate how social media platforms moderate their content, compelling them to host speech they wouldn’t otherwise? The answer to this question, which the U.S. Supreme Court strongly indicated on Jan. 23 it would soon address in a pair of cases involving Florida and Texas laws, should be no.
That’s because the statutes violate the platforms’ First Amendment free speech rights. NetChoice, an association representing the likes of Meta (Facebook), Twitter and Google, is challenging both measures.
On Jan. 23, the Supreme Court invited U.S. Solicitor General Elizabeth Barchas Prelogar to file briefs expressing the Biden administration’s views on the issue. The request provides a strong signal that the Supreme Court will likely hear these views. And, if it does, the ruling will be momentous.
Resting in the justices’ hands will be the platforms’ ability to determine and curate for themselves — as business entities, free from government censorship — the content they host, where they host it and, ultimately, the types of communities they maintain. Facebook, for example, bans hate speech and “particularly violent and graphic” content in defining its community standards.
Moody v. NetChoice involves a Florida law barring large social media platforms from permanently deleting or suspending (for more than 14 days) the accounts of candidates running for state or local office in the Sunshine State. This deplatforming provision applies regardless of whether candidates once or repeatedly violate a platform’s policies regarding acceptable speech. Candidates thus can continually post hate speech and violent content on Facebook and never be jettisoned.
Adopted in 2021, Florida’s law regulates only platforms with at least 100 million monthly users or $100 million in annual gross revenue. It leaves unfettered smaller platforms, thereby discriminating against larger ones by compelling them to host the speech of candidates who flout their community standards. The statute also forbids large platforms from prioritizing or making less prominent posts made by or about candidates who use their services.
NetChoice v. Paxton centers on a Texas statute banning social media platforms with more than 50 million monthly users from “censoring a user, a user’s expression, or a user’s ability to receive the expression of another person based on … the viewpoint of the user or another person.”
The laws’ proponents tout them as protecting users from censorship by platforms and their algorithms. They view the measures as promoting users’ speech rights, with some Republicans believing platforms unfairly censor right-leaning viewpoints. As Florida Republican Gov. Ron DeSantis said about his state’s law, “If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.”
These complaints ignore a bedrock principle: The First Amendment only protects citizens from censorship by the government, not from decisions made by private entities like social media platforms. The Supreme Court made it clear in 1997 that regulations affecting speech on the internet must face the same rigorous level of First Amendment scrutiny as those impacting speech in print. Thus, when Florida and Texas paternalistically dictate the content that platforms must host and how they curate it (where and in what order it must appear), constitutional red flags are waved because the platforms’ First Amendment rights are gored.
Specifically, the editorial autonomy of platforms to make their own decisions regarding the type of speech they allow is destroyed. By telling platforms they must carry messages they deem objectionable, Florida and Texas violate the platforms’ editorial control and their First Amendment right not to speak. Just as the First Amendment shields individuals and entities from the government restricting their speech, the Supreme Court has concluded that it sometimes protects them from being compelled by the government to convey messages.
Looming large over today’s cases is the Supreme Court’s 1974 opinion in Miami Herald Publishing Co. v. Tornillo, which concluded that a newspaper could not be compelled to print the reply of a candidate for public office whose record and character the newspaper had assailed. In striking down Florida’s right-of-reply statute, the Supreme Court reasoned that “the choice of material to go into a newspaper … and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment.”
Social media platforms are not traditional newspapers. But, like newspapers, they are media entities, publishing and disseminating speech. Platforms also speak for themselves when adopting and publishing standards about unacceptable content. The Supreme Court should agree to hear both cases and not allow Florida and Texas to violate these First Amendment-safeguarded prerogatives.
Clay Calvert, J.D., Ph.D. is professor emeritus at the University of Florida (UF). He held a joint appointment as a professor of law at the Fredric G. Levin College of Law and a Brechner Eminent Scholar in Mass Communication in the College of Journalism and Communications. Specializing in First Amendment and media law, Calvert has published more than 150 law journal articles on topics affecting free expression, and he is lead author of “Mass Media Law” (22nd ed. 2023, McGraw Hill).
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