Alexandra Zimmer | Big Tech vs. Government: The Debate on Social Media Free Speech
INTRODUCTION
Social media has become a prominent part of everyday life. It is regarded by many as the modern-day equivalent of the town forum. The Pew Research Center finds that over 70% of American adults use some form of social media, and almost all of those users get news content from them. It is one of the foremost means of communication in our modern world. Views of social media censorship, especially related to certain political news and politicians, have shifted in recent years. Generally, social media users have differing views on whether Big Tech should be regulated more heavily by the U.S. government in response to these perceptions of censorship.
One of the most recent and widely publicized examples of social media censorship against users of private platforms was the banning of 45th President Donald J. Trump from Twitter in the wake of the January 6, 2021 insurrection of Washington, D.C. This ban sparked greater debates about whether social media platforms are unfairly censoring political candidates and those who hold and speak certain political views on social media platforms. Trump has initiated and serves as the lead plaintiff in numerous class actions against various social media platforms, including Twitter, Inc., Meta Platforms, Inc., and YouTube, LLC.
Social media companies, as major facilitators of modern-day communication, are in unique positions regarding their moderation of third-party content that is disseminated via their platforms. The Communications Decency Act of 1996 (47 U.S.C. § 230) has been used to maintain that social media platforms cannot be held liable for harm caused by third-party users of their platforms because they are not the creator of the content, but a publisher who engages in editorial functions. This viewpoint is being challenged as technology and social media communications develop.
Several states have begun to enact legislation to tie the hands of social media platforms that seek to regulate third-party content on their websites. These statutes (broadly speaking) limit the ability of social media platforms to regulate speech that doesn’t fall into exceptional categories such as sexually explicit material or material that facilitates criminal activity. Challenges to these statutes have resulted in conflicting decisions from the circuit courts, particularly with respect to whether the editorial judgment and content-moderation activities of social media platforms are protected by the First Amendment and if social media companies are common carriers who are precluded from restricting lawful communication.
ISSUE
Do social media platforms have the right to censor third-party content under the First Amendment?
THE SPLIT
11th Circuit
Florida Senate Bill 7072 (“the Act”) was approved by Governor Ron DeSantis in April 2021 to require social media platforms to host political candidates during their campaign as well as force platforms to explain why certain users were deplatformed or shadow banned (a term used to refer to blocking, restriction, or suppression of a user’s content on a platform without the knowledge of the user). In DeSantis’s signing statement, it was announced that the Act sought to stop “biased silencing” of conservative speech. The definitions provided for in the Act also indicate that it seeks to combat actions of Big Tech companies specifically and that the regulations are not applicable to all social media providers. This law was challenged by social media companies and a preliminary injunction was upheld in the Eleventh Circuit.
Litigation was initiated by NetChoice, LLC and Computers & Communications Industry Association against the Attorney General of Florida, members of the Florida Elections Commission, and the Deputy Secretary of Florida Department of Management Services to challenge the Act on the grounds that it violated the First Amendment free-speech clause, Fourteenth Amendment equal protection clause, the commerce clause, and 47 U.S.C. § 230(e)(3) (aka the Communications Decency Act) which prohibits imposition of liability on an interactive computer service for action taken to restrict access to material deemed objectionable. The defendants argued that social media platforms sought to silence conservative speech in favor of a “radical leftist” agenda that catered to Silicone Valley values and “‘big tech’ oligarchs.” The plaintiffs were granted preliminary injunction which was upheld by the Eleventh Circuit in NetChoice, LLC v. Attorney General, State of Florida, 34 F.4th 1196 (11th Cir. 2022) (hereinafter “Moody”).
The Eleventh Circuit upheld the preliminary injunction in part on the basis that social media providers were private actors who are as entitled to First Amendment free-speech protections as individual citizens and that they are entitled to engage in editorial activities which include regulating, banning, and censoring third-party publication on their websites which violate their guidelines. Additionally, the Eleventh Circuit found that the content of the Act triggered First Amendment scrutiny because it restricts social media platforms’ editorial judgment and content-moderation, and the provisions in the Act that address those specific actions will likely not survive scrutiny. The Court found that “companies that operate social-media platforms express themselves (for better or worse) through their content-moderation decisions” and that those expressions are speech protected under the First Amendment. Therefore, the Act failed strict and intermediate scrutiny.
The Court also noted that social media platforms are not common carriers prohibited from restricting lawful communications. The Attorney General of the State of Florida filed petition for writ of certiorari with the United States Supreme Court in October 2022.
5th Circuit
A bill similar to that in Florida was signed by Governor Greg Abbott in Texas in September 2021. Texas House Bill 20 (“the Act”) was passed to protect against social media companies’ attempts to “silence conservative viewpoints and ideas.” The Act prohibits social media platforms from moderating or removing content or users who publish content that is legal but contradictory to the platform’s viewpoints, but permits certain regulations of material that is sexually
Litigation challenging the Act was initiated in 2022 by NetChoice, LLC who once again sought preliminary injunction to stop the Act from restriction. The District Court in Texas entered a preliminary injunction similar to the decision of the Florida District Court in Moody. The Texas District Court also found that the editorial functions and content moderation procedures of social media platforms were protected by the First Amendment and that the Act failed intermediate and strict scrutiny. The decision was heard on appeal by the Fifth Circuit in NetChoice, LLC v. Paxton, 49 F.4th 439 (5th Cir. 2022).
However, the Fifth Circuit diverged from the findings of the District Court and the Eleventh Circuit by rejecting the idea that social media platforms, and corporations in general, are permitted to “censor” people under the First Amendment. The Fifth Circuit instead found that the Act was constitutional, citing the Communications Decency Act's general idea that interactive computer services, including social media platforms, are not the creators of speech published by third parties. The Court found this to be evidence of Congress’s view that social media platforms are not “speaking” by regulating third-party. Content. The Circuit Court also noted that the social media platforms who were parties in the case provided no evidence that the history of the First Amendment, nor its original understanding, protected social media content moderation and editorial functions as claimed, and criticized the District Court’s application of the overbreadth doctrine to invalidate the Act as a whole for determinations that substantial parts of the law violate constitutionally protected speech.
Instead, the Fifth Circuit held that the Act did not violate the First Amendment because social media platforms that hosted third-party speech had the right to speak or not speak on the content that was being published. The Court cited various cases to state that a speech host had to show a challenged law either restricted or compelled the host’s own speech, and that the Act did neither of those things.
The Circuit Court made numerous other arguments against the contention that the Act violated the First Amendment, including invoking the common carrier doctrine, finding that editorial discretion can be used to demonstrate protected speech but was not actually free speech, and noting the political and economic involvement of social media platforms in citizens’ lives. The Fifth Circuit held that the Act was in fact constitutional and imposed minimal burdens and restrictions to social media platforms’ speech. The Court vacated the preliminary injunction and the Act was allowed to take effect.
LOOKING FORWARD
There has been a recent trend towards strictly defining the legal role social media plays in our lives and the Supreme Court may have to opportunity to set the boundaries of social media involvement with third-party content and speech dissemination. With the upcoming Supreme Court review of Gonzalez v. Google, LLC and the Attorney General of Florida’s filing of a petition for writ of certiorari to challenge the preliminary injunction upheld by the Eleventh Circuit, the Supreme Court may have the chance to determine whether or not social media platforms are permitted to “censor” users under the First Amendment, whether they are common carriers who are required to host legal speech, and how responsible they are for the content that makes its way to users of their platforms.