US Supreme Court inclines toward respecting moderation policies of social networks

What can social networks be compared to? A telephone? Or a newspaper? The telephone company cannot interfere in what its users say on a call. On the other hand, the editor of a newspaper does have power over what is published on its pages. Are the owners of Facebook, YouTube, X, Instagram or TikTok phone companies, or are they newspaper publishers? In reality they are neither, and that’s the tricky part. So when the U.S. Supreme Court on Monday addressed the scope of free speech in relation to social networks, it became clear that any doctrine on the matter contains “landmines,” as Justice Amy Coney Barrett so graphically put it. Even so, the justices seemed to be mostly inclined to respect content moderation policies.

Social networks have returned to the Supreme Court months after its justices upheld the exemption of technological companies from responsibility for the content published by their users. This time it was the platforms’ own content moderation policies that were in dispute. The states of Texas and Florida, both with Republican majorities, passed laws against these policies on the grounds that they imposed censorship on their users by silencing conservative voices such as those supporting the theory that Donald Trump had the 2020 election stolen, or those publishing disinformation about vaccines.

The two parties — the states and the platforms — are flying the flag of freedom of expression enshrined in the First Amendment in the face of state interference. Texas and Florida consider that vetoing messages and users violates free speech; the platforms, represented by industry associations, say that it is these laws that violate it by preventing them from choosing what to publish on their platforms. For the states, social networks are more like telephones; for the platforms, they are more like newspapers.

The decision to be reached by the Supreme Court is of extraordinary importance for the future of social networks and the content they disseminate. Impeding moderation policies can provoke a rise in disinformation and hate speech. This has been the case, at least on occasion, at X after its new owner, Elon Musk, abandoned most efforts to combat these, which in turn led to a flight of advertisers.

During two hearings Monday, one for each state’s law, the Supreme Court justices displayed differing sensibilities on the issue. Trying to second-guess what they will decide is always a high-stakes game, but experts were inclined to think the majority would back the platforms’ right to moderate their content.

“Florida’s effort to level the playing field and to fight the perceived bias of big tech violates the First Amendment several times over,” Paul Clement, an attorney for the platforms in one of the cases, said. “It interferes with editorial discretion, it compels speech, it discriminates on the basis of content, speaker and viewpoint.”

Aaron Nielson, representing Texas, went back beyond the telephone to the telegraph: “This is not the first time that new technology has been used to stifle speech. Telegraphs also discriminated based on viewpoint, prompting a national scandal. Yet, under the platforms’ theory, Western Union was just making editorial choices not to transmit pro-union views. Today, millions of Americans don’t visit friends or family or even go to work online - on person. Everybody is online. The modern public square. Yet, if platforms that passively host the speech of billions of people are themselves the speakers and can discriminate, there will be no public square to speak of.”

Shortly after conservative Justice Samuel Alito referred to the Orwellian temptation of the platforms in the Florida case, the also conservative but more moderate Brett Kavanaugh replied: “When I think of Orwellian, I think of the state, not the private sector, not private individuals.” And, in a criticism of the Texas and Florida laws, he cited Supreme Court case law, which notes: “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

Chief Justice John Roberts himself has voiced his skepticism of Florida’s arguments. “You began your presentation by talking about the concern about power, market power, and the ability of social media platforms to control what people do, and your response to that is going to be the exercise of state power to control what happens on social media platforms. I wonder, since we’re talking about the First Amendment, whether our first concern should be with the state regulating what, you know, we have called the modern public square.”

The laws, whose content is similar, but with their own nuances, have already been challenged before the federal courts, with contradictory results: one judgment annulled the Florida law, while another upheld the Texas law, so it seemed clear that the Supreme Court would admit unifying the doctrine on the matter. The justices suspended the application of the Texas law as a precautionary measure last year, in a decision taken by a 5 to 4 vote. The Supreme Court has a majority of six conservative justices to three progressives.

“A euphemism for censorship”

The most conservative justices, Clarence Thomas and Samuel Alito, appeared most sympathetic to the laws. “As far as I can see, they’re censoring, and I know of no protected free speech right to censor other speech,” Thomas said in the Florida case. And clearly, Justice Alito is not very sympathetic to the idea of content moderation: “Is it anything more than a euphemism for censorship? Let me just ask you this: If somebody in 1917 was prosecuted and thrown in jail for opposing U.S. participation in World War I, was that content moderation?” he asked of the platforms’ lawyer, also in the Florida case.

Some judges, however, have raised doubts about whether a ruling should apply to any platform in any situation. “Does Gmail have a First Amendment right to delete, let’s say, Tucker Carlson’s or Rachel Maddow’s Gmail accounts if they don’t agree with his or her viewpoints,” asked Alito. Clement replied that Gmail “might be able” to do so, but argued that was not the core of this case.

The court also raised the question of how to make freedom of editorial expression to moderate content compatible with the disclaimer of liability for content posted by users, known as Section 230. “The argument under Section 230 has been that you are simply a conduit, which was the case in the 1990s and maybe in the early 2000s. Now you’re saying that you are engaged in editorial discretion and expressive conduct. Doesn’t that seem to undermine your Section 230 arguments?” said Thomas.

And hence, in part, the doubts. “If what we say about this is that this is speech that’s entitled to First Amendment protection, I do think then that has Section 230 implications for another case,” said conservative justice Barrett. “And so it’s always tricky to write an opinion when you know there might be landmines that would affect things later.” How the Supreme Court decides to approach those landmines will become known in June.

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