The Supreme Court handed social media companies a victory Tuesday by temporarily blocking a Texas law that would have banned major apps, including Facebook and Twitter, from deleting posts based on the views they expressed.
But the issue could return to court, and at least three judges appear to be open to a question that could fundamentally change social media as we know it: do sites like Facebook have a First Amendment right to submit certain material? standing and others not, or an obligation to distribute almost everything?
The judges’ interest shows that we are all still figuring out how to deal with a handful of social media companies that have a huge impact on public conversation. Few people are happy with this reality, but it is not clear what to do about it.
Let me explain how we got here:
What the First Amendment Says:
The First Amendment restricts government censorship, but does not apply to corporate decisions.
You may not agree with the choices made by internet companies, but First Amendment scientists have said Facebook had the constitutional right to suspend Donald Trump’s account. Twitter can determine that people are not allowed to spam their followers with marketing talk. The government has not intervened in those choices.
Texas inside. And Florida.
Conservative politicians have long complained that Facebook, Twitter, YouTube and other social media companies are unfairly removing or downgrading some conservative views. I have not seen any credible research to support this view, but many people believe it.
In response, a Texas law signed last year, HB 20, banned major social media companies from censoring people based on the “user or other person’s point of view.”
Internet business associations and some constitutional rights groups said the Texas law violated the First Amendment because it allowed the state to tell private companies what kind of speech they could or could not distribute.
The internet companies took it a step further, saying that social media apps had the same broad First Amendment protections against government interference in “editorial review” that applies to news organizations.
Texas objected that Facebook, Twitter, and the like don’t have such First Amendment protections because they’re more like old telegraphs, phone companies, and home Internet providers. More government interference is allowed for such ‘common carriers’ because people cannot be stopped from using essential means of communication.
A majority of judges said Tuesday the Texas law could not go into effect as an appeal made its way through the justice system. They didn’t decide on either side’s interpretation of how the First Amendment would apply to 21st century social media.
What happens now:
A federal appeals court recently found a Florida law passed last year unconstitutional that similarly sought to limit social media companies’ discretion over speech. The Supreme Court may eventually adopt Texas or Florida law and rule on its constitutional merits.
On Tuesday and in previous comments, three judges opened up to consider how the First Amendment may or may not apply to social media.
In a case last year, Judge Clarence Thomas advanced the idea that social media has similar responsibilities to regular carriers to not restrict speech. And on Tuesday, Thomas and Judge Neil Gorsuch signed a dissenting opinion, written by Judge Samuel Alito, which read: “It is not at all clear how our existing precedents, which predate the Internet age, should apply to major social media companies. Alito also wrote that he had “not taken a definitive stance on the new legal questions” raised by the Texas law on social media.
These issues force us to grapple with a fundamental question about what kind of world we want to live in: are Facebook, Twitter and YouTube so influential in our world that governments should hold back their decisions, or are they private companies that should have the freedom to set their own rules?
Learn more about Texas law from our colleagues at DealBook†
In this guest essay from the New York Times as of December, Jameel Jaffer and Scott Wilkens of the Knight First Amendment Institute at Columbia University wrote that social media platforms are neither newspapers nor ordinary carriers.
Before we go…
-
The online trail of the accused mass murderer in Buffalo: My colleagues Steven Lee Myers and Stuart A. Thompson wrote that the continued prevalence of racist and violent material online “reveals the limits of the efforts of companies like Twitter and Google to moderate posts, images and videos promoting extremism and violence.”
-
Bring back this feature from the 90s: The old AOL Instant Messenger allowed people to set up “out of office” messages that discouraged people from starting a conversation if you didn’t want to be disturbed. Lauren Goode, a writer for Wired, said it was a simple yet powerful feature to free people from distraction and she misses it.
-
A lighting assistant came to the restaurant for optimal video recording of snacks. This Eater essay is a thoughtful reflection on how TikTok is changing the way we think about restaurants in both helpful and hurtful ways.
Hug for this
Oregon Zoo and some Girl Scouts helped release endangered pond turtles into the wild. The turtles and the girl scouts looked like they were having a blast.
We want to hear from you. Tell us what you think of this newsletter and what else you want us to discover. You can reach us at ontech@CBNewz.
If you have not yet received this newsletter in your inbox, then sign up here† You can also read previous On Tech columns†
