The Supreme Court recently announced that it is going to hear two major cases relating to the right of free expression.
Both cases will examine the constitutionality of state laws that were created to prohibit tech companies from discriminating against social media platform users who are ideologically conservative.
At the heart of the cases is Big Tech’s pattern of targeting and eliminating select content.
The passage by state legislators in 2021 of the laws in question came in response to censorship of user-generated content, which was taking place on social media sites.
The Texas and Florida legislatures were acting on behalf of their constituents in using their lawmaking capabilities to try and restore freedom of expression to the portion of the digital world that was being impacted by selective censorship.
It is regrettable, to say the least, that the redacting of factual information, political ideology, faith expression, and the like, which frequently runs contrary to today’s progressive and/or radical narratives, is routine business for a majority of Big Tech companies.
The Texas and Florida legislators engaged in the appropriate processes in an effort to address the censorship problem.
Texas law H.B. 20 bars social media platforms with at least 50 million active users from blocking, removing, or demonetizing content based on a respective user’s point of view. Similar to phone companies, the law re-classifies social media platforms as “common carriers.”
Florida law S.B. 7072 forbids large social media platforms from censoring or banning political candidates and what the law refers to as a “journalistic enterprise.” The Florida bill also mandates that social media companies publish standards for the removal of content as well as for exercising consistency in the application of such standards.
Technology industry groups NetChoice and the Computer & Communications Industry Association have challenged each of the state laws. Members of the groups include TikTok, X, formerly called Twitter, and the owners of Facebook and Google.
The Biden administration joined with the technology groups, arguing that social media platforms’ rights include those of censoring the content of customers.
Two appeals courts have given conflicting rulings over the two state laws. One of the appellate courts upheld the Texas law, but another struck down the Florida statute. In both cases, implementation of the state laws during appeals has been temporarily halted by federal courts.
In May of 2022, the Supreme Court (by a 5-4 ruling) kept the Texas law on hold during the process of litigation.
Justice Samuel Alito was part of a dissenting opinion, which said that the law should be left in place and that the issues were so novel and significant that the Supreme Court would have to consider them at some point. The justice wrote, “Social media platforms have transformed the way people communicate with each other and obtain news.”
Justice Alito added, “At issue is a groundbreaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”
The justice also expressed skepticism toward the argument that social media companies have editorial discretion protected by the First Amendment, such as the kind that newspapers and other traditional publishers enjoy.
The aforementioned tech trade groups, along with the Biden administration, are contending that the Constitution protects the social media platforms’ elimination of so-called disinformation.
Tech companies claim that taking away their unfettered right to censor will mean that their platforms will be filled with the vague categories they are claiming pose a danger, e.g. bullying, extremism, and hate speech.
However, the High Court will look closely at the carve-outs that state legislators placed in the laws to permit platforms to perform legitimate functions. These exceptions allow categories of content, such as pornography and foreign government speech, to be removed by the tech companies.
The above mentioned cases, which will be heard in the new nine-month term that recently began, will ultimately answer a single question of utmost importance: Do states have the ability to put a halt to speech discrimination by tech companies?
Social media platforms have become essential communication components of everyday life.
They allow us to connect and interact with individuals, organizations, educational institutions, governmental bodies, health agencies, etc.
Pray that the Supreme Court decides in favor of a free internet so free speech can live.
James Hirsen 