The Supreme Court will decide early next week whether to hear a case that will shape the future of social media for years to come.
At issue is whether companies like Facebook, YouTube and Twitter are allowed under the law to remove content that violates their rules.
The case is actually two cases. A federal appeals court in Texas found that social media companies can’t remove content. Another federal appeals court, in Florida, found that they can.
Those two cases are on a collision course and headed for the Supreme Court. After the court decides next week whether to take the cases — which legal experts say it almost certainly will — it would hear arguments just after the new year.
What’s the argument for the social media companies?
The First Amendment’s free speech protections are the first and main line of defense for social media companies.
The 11th Circuit Court of Appeals in Florida found that “their moderation is protected editorial judgment under the First Amendment,” according to Daphne Keller, director of the Program on Platform Regulation at Stanford’s Cyber Policy Center.
The cases “carry the potential to finally give social-media platforms the same First Amendment rights over content that the court bestowed on print newspapers nearly 50 years ago in Miami Herald Publishing Co. v. Tornillo,” wrote Clay Calvert, an expert on tech policy and the First Amendment at the American Enterprise Institute, a conservative think tank.
In other words, under this view when Facebook removes a post, or suspends a user, that is free speech on the companies’ part, and it is protected by the Constitution.
Social media companies remove or restrict content for a host of reasons, from profanity to abusive language to sexually explicit content to false information.
State governments in Texas and in Florida, controlled by Republicans angered by social media suspensions of significant GOP figures such as former President Donald Trump in 2021, both passed laws that same year forbidding the platforms from removing content or suspending users.
But legal precedent in the U.S. has never allowed the government to control what a private company can communicate or not communicate.
In fact, the Fifth Circuit Court of Appeals ruled earlier this month that the government is barred from “coerc[ing] or significantly encourag[ing] social-media companies to remove, delete, suppress, or reduce ... posted social-media content containing protected free speech.”
The court found in that same decision that the Biden administration had “likely violated” the First Amendment in its attempts to pressure social media companies to take down or restrict COVID-19-related posts in 2021.
The odd thing is that the Fifth Circuit is the same court that one year ago upheld the law — passed by the Republican-controlled Texas Legislature — that would coerce social media companies into leaving up content that the companies want to take down, for whatever reason.
The two rulings were issued by two different sets of three-judge panels. There are 17 active judgeships on the Fifth Circuit. But still, legal and tech experts have noticed the gaping discrepancy that appears to exist between the two rulings.
“The Fifth Circuit Court has now held that it’s unconstitutional for the federal [government] to influence platforms’ moderation decisions, while also holding it’s constitutional for Texas to compel platforms to leave up content they want to take down. Impossible to square that circle,” wrote journalist James Surowiecki.
What’s the argument against the social media companies?
Supreme Court Justice Clarence Thomas has been writing opinions for a few years now that refer to social media companies as “common carriers,” which is similar to public utilities.
That just means that under Thomas’s understanding of the law, the government — while barred from coercing social media platforms to take content down — could still coerce companies to leave content up.
It is the kind of philosophy that sees “more speech” as the greatest good, but many experts firmly say that it is not a “free speech” point of view.
“The rights against compelled speech are just as important as the rights against suppressed speech. Because without one, you really don’t have the other. Freedom of speech covers both what you do and what you don’t say,” wrote Techdirt’s Mike Masnick.
But Keller, the Stanford expert, explained in a written piece for Lawfare that a Thomas opinion in Twitter v. Taamneh earlier this year repeatedly described social media platforms in an inaccurate way, claiming they are “passive, and largely indifferent” toward removing content.
The Thomas opinion’s “description of platforms as ‘generally available to the internet-using public[,]’ who mostly ‘use the platforms for interactions that once took place via mail, on the phone, or in public areas’ frames them as functional substitutes for traditional common carriers, and tracks Texas’s argument that platforms are ‘twenty-first century descendants of telegraph and telephone companies,’” Keller wrote.
Attorneys for the Texas Legislature have already relied on the Thomas opinion to “argue that platforms have no First Amendment interest in maintaining editorial control because, as Taamneh describes them, the platforms don’t really have much of an editorial role in the first place.”
Keller described the faultiness of Thomas’s description of the social media platforms’ practices as “strange.”