Social Media Companies Assert their First Amendment Right to Censor American Users
In a landmark case that is currently before the Supreme Court, social media companies are asserting their First Amendment right to control speech on their platforms. The case, Moody v. NetChoice and NetChoice v. Paxton, involves laws in Florida and Texas that seek to regulate the practice of blocking content by social media companies. The outcome of this case will have far-reaching implications for free speech on digital platforms.
The case has divided free-speech advocates into two camps. NetChoice, an industry group representing social media companies, argues for the right of private companies to censor as they see fit. On the other hand, Texas and Florida officials argue that users of social media platforms should not be excluded from service based on their political, religious, or scientific views.
Legal analysts who observed the oral arguments in the Supreme Court have concluded that tech companies are likely to win the case. Steve DelBianco, founder and CEO of NetChoice, expressed confidence in the outcome, stating, “I believe we’ve created a perfect storm of cases, and the Supreme Court will have an opportunity to erect a real wall to signify what the First Amendment is.”
However, proponents of the state laws argue that they do not restrict social media platforms’ ability to speak but rather their ability to deny service based on customers’ viewpoints. The Texas law, HB20, also requires platforms to clearly state their terms of service and explain to customers how they violated those terms if they choose to censor them.
Critics of social media companies’ censorship practices point to instances like the blocking of New York Post reports on Hunter Biden’s laptop during the 2020 election. The news was blocked for more than two weeks until just days before the presidential election. Mark Zuckerberg, Facebook’s founder, later admitted that his company had blocked the news at the urging of the FBI. These incidents have fueled concerns about social media censorship and the need for regulation.
Legal experts worry that allowing social media companies to silence viewpoints they or the government dislike could lead to wholesale suppression of speech in America. Philip Hamburger, a professor at Columbia Law School, argues that government just asks social media platforms to suppress speech, making it easier for the government to silence individuals without due process. This raises concerns about the erosion of free speech rights in the digital age.
The Supreme Court will also have to decide how social media companies should be regarded. The analogy they choose—whether the platforms are more like newspapers, printing presses, telephone companies, or telegraph lines—will determine the outcome of the case. NetChoice argues that social media platforms should be analogized to newspapers, which have the right to decide what to publish. If they are considered publishers, the state laws would likely be considered unconstitutional. On the other hand, if they are seen as common carriers, like phone companies, then laws requiring them to serve customers equally would likely stand.
The debate surrounding social media censorship raises important questions about the role and responsibility of tech companies in shaping public discourse. While they argue for their First Amendment rights, social media companies also rely on Section 230 of the Communications Decency Act, which protects them from liability for content on their sites. This contradiction raises concerns about the power and influence these companies hold over public discourse without being held accountable for the content they host.
Ultimately, the Supreme Court’s ruling in this case will have significant implications for free speech online. It will determine whether social media companies have the right to control speech on their platforms or if they should be regulated to ensure equal access and non-discrimination based on users’ viewpoints. As technology continues to shape our society, it is crucial to strike a balance between protecting free speech rights and preventing the abuse of power by tech giants. The outcome of this case will set an important precedent for the future of online discourse and the boundaries of free speech in the digital age.
