Social Media and Censorship

As we head into the last quarter of the Supreme Court’s term, a number of important decisions are yet to be issued. Two of these were argued together in late February, and they concern state censorship in social media and on the internet. Texas and Florida both enacted “must carry” laws, requiring internet service providers and social media outlets to carry all content and seeking to thwart content moderation by which ISPs and social media companies control the content that readers see. The proponents of the legislation, Attorneys General Paxton in Texas and Moody in Florida, assert that ISPs and social media companies should not be able to dictate what appears on their sites. Thus, they say, Facebook shouldn’t be able to edit out and delete what it believes to be misinformation, and Tik Tok shouldn’t be able to take down things that might arguably be invasions of personal privacy. Texas and Florida both believe that permitting editorial judgment systematically discriminates against right-wing views, which are artificially repressed. Have they read Twitter/X lately?

The key question of course is what old-style analogy best applies to our brave new media world. Are social media companies more like newspapers and traditional print journalism outlets? The New York Times and the Wall Street Journal can print whatever they want, in their Op-Ed and news pages both, with their editorial selections and decisions protected by the First Amendment. Or are new media outlets more like town squares, where the First Amendment permits…indeed, requires…all speakers who wish to express their views to be allowed? Alternatively, if those new media outlets are privately owned, as they unquestionably are, is the right analogy to privately owned shopping centers, which took the place of traditional town squares, and were required to accommodate themselves to public expression of multiple views as a result? Or are they like common carriers, such as the traditional telephone companies, required to convey all content on an equal access basis, with the only limitation being illegality of the underlying speech, and the only protection for the online carrier being Section 230 of the Communication Decency Act?

The answer, I believe, is based on a straightforward application of the First Amendment, which permits speakers to decide as a matter of their own editorial judgment what content to include and what to exclude, with those editorial judgments being free from second-guessing. In other words, the rules applicable to traditional print and broadcast journalism should apply. Texas and Florida shouldn’t be able to put their thumb on the scale by requiring all submissions from any source to be posted, which can only produce cacophony and confusion. Media outlets of all types can edit to present their views, or not as they see fit, and the State shouldn’t be able to intervene to force them to carry all views any more than the State could force changes to the editorial policies of the Times or the Journal. The fears of Texas and Florida that conservative viewpoints will be inadequately represented can be addressed by the marketplace. If there is enough money at stake, and enough eyeballs to consume the “journalism,” there will be plenty of outlets for all points of view to be expressed. You want your unfettered Red Team messaging? Twitter/X is your place. No need to require Facebook or TikTok to present that point of view too. Is content moderation a form of censorship? Not so long as the First Amendment protects the expression of other points of view in other locations and forums.

What will the Supreme Court ultimately say? None of us can know for sure, but I’m fairly confident given the oral arguments that Texas and Florida are going to lose this round.

                                                                                     Richard P. Swanson

                                                                                     President-Elect, NYCLA

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers, or its Board.