Last year, the Supreme Court ruled in a landmark decision that Section 230 of the Communications Decency Act protected recommended content. While the decision was critical for preserving a free and open internet and allowed platforms to continue employing a light-touch content moderation policy, it wasn’t the only case concerning digital free speech percolating through the courts. The next batch of cases involves laws passed in Florida and Texas after the 2020 presidential election and concerns that social media platforms were biased against conservative speech.
After a split decision between the Fifth Circuit that ruled Texas’ bill constitutional and the Eleventh Circuit that ruled Florida’s legislation unconstitutional, it has fallen to the Supreme Court to decide what rights social media companies have to curate content on their platforms.
In late 2021, the Florida legislature passed Senate Bill 7072, which severely restricted the ability of social media platforms to take down content or restrict access to posts that violated a platform’s terms of service. The bill also required that platforms explain to users why they removed content and, most notably, prevented them from de-platforming candidates for office. While Governor DeSantis hailed the bill as Florida standing up to liberal Silicon Valley, judges at the Atlanta-based Eleventh Circuit held that because social media platforms are private entities, they enjoy broad First Amendment protections, including the right to curate content. As such, the court ruled that Florida’s SB7072 was likely unconstitutional.
While Texas passed a similar bill the same year, the New Orleans-based Fifth Circuit reached a different conclusion. In that case, the court held that “social media companies’ power to censor certain viewpoints is dangerous for free speech principles and not protected by the First Amendment.” Additionally, the court determined that social media platforms should be classified as common carriers and regulated like utilities because of their size and importance in transmitting protected speech. As such, that court ruled that the legislature had the right to restrict content moderation practices.
With a split decision and the Supreme Court about to hear oral arguments, the question inevitably becomes what each respective outcome will mean for the future of digital free speech.
In one scenario, the Supreme Court rules that the Florida and Texas bills are both unconstitutional and, therefore, strikes them down for violating the First Amendment rights of social media platforms. In this instance, the status quo will largely be reaffirmed, and social media platforms will continue to be able to operate as they have done. It will send a clear declarative statement that despite hostility toward Silicon Valley and large technology companies, state governments cannot violate the First Amendment rights of private entities.
This ruling, however, may prove unsatisfying to millions of Americans who feel social media platforms removed posts because of political content and even more unsatisfying to those who had accounts suspended for engaging in what they believed was protected speech.
In another scenario, the court rules in favor of Florida and Texas, declaring their legislation does not violate the First Amendment. If the court rules this way, the likely outcome will be a balkanization of the Internet, with each state free to pass its own speech code. It would also likely see a significant expansion of government power over the internet, with state legislatures, government agencies, and governor’s offices free to decide what content moderation policies are and are not acceptable. Such power would grant state governments unprecedented control over digital content and shrink the marketplace of ideas to a couple of approved newsstands.
While we won’t likely know the outcome of the court’s deliberations until the summer, their decision could radically change the internet as we know it.
