The courts, the platforms, and regulating speech

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On Tuesday, the US Supreme Court issued an order blocking a Texas law that would prevent large social media platforms such as Facebook, Twitter, and YouTube from removing content, except in extreme cases. (Such exceptions include content involving the sexual exploitation of children, criminal activity, or threats of violence.) The order was triggered by an emergency application from NetChoice, a coalition of online service companies, and the Computer & Communications Industry Association—a group whose members include Google, Facebook, and Twitter—which together argued that the law is “an unprecedented assault on the editorial discretion of private websites” and also a breach of the platforms’ First Amendment rights.

Even as it issued the order, however, the Supreme Court noted that the case is still before an appeals court in Texas, and that the issues at the center of the case are so critical that they will likely need to be considered at length by the nation’s highest court itself. “This application concerns issues of great importance that will plainly merit this Court’s review,” the order, which is brief, states. In a dissenting opinion issued as part of the ruling, Justice Alito said social media platforms have “transformed the way people communicate with each other,” but that “it is not at all obvious how our existing precedents, which predate the age of the internet, should apply”—rationale that, to some, would seem to open the door to a challenge to the platforms’ First Amendment rights.

Last week, meanwhile, an appeals court in Florida blocked most of the provisions in a similar state law that would have prevented the platforms from removing accounts belonging to politicians. In its decision, the court stated that “it is substantially likely that social-media companies—even the biggest ones—are private actors whose rights the First Amendment protects [and] that their so-called content-moderation decisions constitute protected exercises of editorial judgment.” Specifically, the court said that prohibiting companies from removing content was not allowed, but that other provisions in the law—requiring the platforms to provide clear standards for content, for instance, and allowing users to access their data—likely don’t violate the First Amendment and therefore can be implemented.

One impetus for both the Florida and the Texas laws is a belief that the platforms censor conservative voices more than they do other kinds of content. Twitter’s and Facebook’s banning of Donald Trump is often held up as a prime example, but the belief that the platforms censor right-wing sources was a popular trope for years before the Trump ban took effect. (Researchers say they have found no evidence to support these claims.) In comments made online about the Florida law, Ron DeSantis, the state’s governor, said he passed it because “Big Tech bureaucrats are not the arbiters of truth,” adding, “Unaccountable oligarchs will no longer have the power to silence Floridians for challenging corporate media narratives or dissenting from the Silicon Valley orthodoxy.”

The Texas law defines the large social platforms as “common carriers,” a phrase typically used to describe telephone companies, which by law aren’t allowed to interfere with the content they carry on their networks. In its emergency application to the Supreme Court, NetChoice and the CCIA argued that the law would “compel platforms to disseminate all sorts of objectionable viewpoints—such as Russia’s propaganda claiming that its invasion of Ukraine is justified, isis propaganda claiming that extremism is warranted, [and] neo-Nazi or KKK screeds denying or supporting the Holocaust.” In his response to the Supreme Court application, however, Ken Paxton—the attorney general of Texas—continued the “common carrier” argument, calling the platforms “the 21st-century descendants of telegraph and telephone companies.”

Based on previous comments made by Justice Clarence Thomas, the “common carrier” argument might find some support in the court. In a decision last year, Thomas cited a 1914 Supreme Court ruling that said making a private company a common carrier may be justified when “a business, by circumstances and its nature…rise[s] from private to be of public concern,” and that “there is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.” In the same decision, Thomas said that “the concentrated control of so much speech in the hands of a few private parties” was unprecedented, and that the court “will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure.”

The First Amendment isn’t the only legal protection shielding platforms from the Florida and Texas laws. Section 230 of the Communications Decency Act also protects them from liability for the content they host, and specifically for the moderation decisions they make. The law has been criticized on both sides of the political aisle: Republican critics argue that Section 230 allows the platforms to censor right-wing voices, and Democrats argue that it enables the platforms to host disinformation. Justice Thomas has views on this as well: in a decision in 2020, he said that, “by adopting the too-common practice of reading extra immunity into statutes where it does not belong, courts have [granted] sweeping protection to Internet platforms”—something Thomas suggested needs correcting. The platforms could be in for a fight on several fronts, it seems, and sooner rather than later.

Here’s more on the platforms and speech:

• Up for grabs: The legislative and judicial turmoil over the platforms and their rights and responsibilities with respect to speech suggest that “the First Amendment is to some degree up for grabs,” Genevieve Lakier, a University of Chicago law professor and senior visiting research scholar at the Knight First Amendment Institute, told Will Oremus of the Washington Post. “These old principles are being pushed and pulled and reimagined in light of changing technological conditions and changing political alignments.”
• Fixing 230: Last year, I used CJR’s Galley discussion platform to host a series of interviews about Section 230 and some of the proposed legislation, from both Republicans and Democrats, aimed at rewriting or even dismantling it. Senator Amy Klobuchar proposed a bill that would carve out an exception for medical misinformation during a health crisis, and Republicans proposed a series of bills aimed at fixing Section 230, either by preventing platforms from removing certain kinds of content (mostly conservative speech) or by forcing them to remove other kinds, such as  cyberbullying and doxing.
• Dismissed: On May 6, a federal court dismissed a lawsuit launched against Twitter and former CEO Jack Dorsey last year by Donald Trump, the American Conservative Union, and five other individuals, on behalf of themselves and an alleged class of Twitter users who have been “de-platformed” and “censored” by the company. Among other things, the plaintiffs asked that Section 230 be declared unconstitutional. Elon Musk, who has said he wants to acquire Twitter, has claimed that he will reinstate Trump’s account if his acquisition is successful.
• Protection: After a gunman killed ten people in a mass shooting in Buffalo earlier this month, Letitia James, New York’s attorney general, announced that her office was opening an investigation into the social media platforms the shooter “used to discuss and amplify his intentions and acts to carry out this attack,” including Discord, Twitch, 8chan, and 4chan. New Jersey said it was also looking into the social platforms and their content moderation practices, and whether they broke the state’s consumer protection laws.

 

Other notable stories:

• Sheryl Sandberg, the chief operating officer of Meta, the parent company of Facebook, announced on Wednesday that she is stepping down from her position after fourteen years as second in command to Mark Zuckerberg, Meta’s cofounder and CEO. Sandberg said that she will continue to be a member of the company’s board of directors, but that it was time for her to “write the next chapter of my life,” the New York Times reported.
• A group of Afghan journalists who worked with members of the UK media say they faced beatings and death threats, and have accused the government of going back on an agreement to bring them to Britain, The Guardian reported. “Having fought in vain for clearance to come to the UK since the return of Taliban rule last summer, the eight journalists are now taking legal action against the government,” The Guardian wrote. They have reportedly applied for a judicial review, after waiting months for their relocation applications to be processed.
• On Wednesday, the union that covers about 350 workers at Vox Media—publisher of websites including Recode, Eater, and SB Nation—said its members have signed a pledge to go on strike if they don’t have a new contract by midnight on June 13, when the old contract expires, the New York Times reported. “Union members said the company had not yet agreed to its proposals. A strike pledge means the members are ready to strike if the union calls for one if a deal can’t be reached,” the Times wrote.
• The publishers of several independent Canadian news outlets have published an open letter criticizing a proposed law that would force platforms such as Google and Facebook to pay publishers for their content. When the federal government introduced the bill, “it said it wanted to sustain local journalism, support innovation in news and ensure diversity in the news industry,” the publishers wrote. “Bill C-18, the Online News Act currently before Parliament, guarantees none of these things.” The publishers blamed “secret, backroom deals” between the platforms and certain established media outlets.
• The body that regulates the US court system has a plan to make searches of the federal pacer (Public Access to Court Electronic Records) system free, Reuters reported. “A newly released report on the Judicial Conference of the United States’ closed-door March 15 meeting showed that the policymaking body greenlighted making pacer searches free for non-commercial users in any future overhauls of the system,” the wire service wrote. Users are currently charged $0.10 per page to search for cases through pacer.
• A BBC article claiming that some lesbians felt pressured into sex by trans women did not meet the broadcaster’s standards on accuracy, the corporation has concluded, according to a report in The Guardian. “The article was published in October 2021 and became a lightning rod for attitudes towards trans people at the BBC,” The Guardian wrote. “The broadcaster faced widespread accusations of transphobia and protests outside its offices, while also receiving backing from some gender-critical feminists.”
• Celebrity chef José Andrés has launched a Substack newsletter called “Longer Tables” as part of an expansion of his media efforts, a representative said in a news release. The weekly newsletter will include “deep dives into food history and the politics of nutrition, profiles of the chef’s growing community of food fighters, as well as recipes and video postcards.” Andrés also plans to launch a podcast, the release said, and for the first six months, all subscription revenue will be donated to World Central Kitchen.
• John Prideaux, director of podcasts for The Economist, told Press Gazette the number of monthly listeners to the magazine’s podcasts is more than twice the outlet’s print subscriber base, and that the podcasts are paying for themselves. “The Economist is now being listened to by more than three million people a month. That compares against 1.2 million print subscribers—while its digital circulation in the second half of 2021 was 995,228,” Press Gazette wrote. 

 

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Mathew Ingram was CJR’s longtime chief digital writer. Previously, he was a senior writer with Fortune magazine. He has written about the intersection between media and technology since the earliest days of the commercial internet. His writing has been published in the Washington Post and the Financial Times as well as by Reuters and Bloomberg.