SCOTUS Questions FL & TX Anti-Censorship Laws on Big Tech

The US Supreme Court heard oral arguments on Florida and Texas laws limiting how social media companies can moderate user-generated content.

The Florida law prohibits large social media sites like Facebook and Twitter (aka X) from banning politicians. It says they must “apply censorship, deplatforming, and shadow banning consistentl among its users on the platform.”

The Texas statute prohibits large social media companies from moderating posts based on a user’s “viewpoint.” The laws were supported b Republican officials from 20 other states.

The tech industry is leaning on its right to use editorial discretion.

Usually, the 1st Amendment is seen as only applying to the government.

Henry Whitaker, Florida’s solicitor general, said that social media platforms marketed themselves as neutral free-speech forums but now claim to be “editors of their users’ speech, rather like a newspaper.”

“They contend that they possess a broad First Amendment right to censor anything they host on their sites, even when doing so contradicts their own representations to consumers,” he said. He argued that social media platforms should not be allowed to censor speech any more than phone companies do.

He said social networks don’t act as only editors, he said that “it is a strange kind of editor that does not look at the material” before it is posted. He also said that “upwards of 99 percent of what goes on the platforms is basically passed through without review.”

Justice Elena Kagan replied, “But that 1 percent seems to have gotten some people extremely angry.” She said the 1 percent of content that is moderated is “like, ‘we don’t want anti-vaxxers on our site, or we don’t want insurrectionists on our site.’ I mean, that’s what motivated these laws, isn’t it?

KAGAN

Later, Kagan said, “I’m taking as a given that YouTube or Facebook or whatever has expressive views. There are particular kinds of expression defined by content that they don’t want anywhere near their site.”

Pointing to moderation of hate speech, bullying, and misinformation about voting and public health, Kagan asked, “Why isn’t that a classic First Amendment violation for the state to come in and say, ‘we’re not going to allow you to enforce those sorts of restrictions?'”

Whitaker urged Kagan to “look at the objective activity being regulated, namely censoring and deplatforming, and ask whether that expresses a message. Because they [the social networks] host so much content, an objective observer is not going to readily attribute any particular piece of content that appears on their site to some decision to either refrain from or to censor or deplatform.”

THOMAS

Justice Clarence Thomas had his doubts about whether content moderation conveys an editorial message. “Tell me again what the expressive conduct is that, for example, YouTube engages in when it or Twitter deplatforms someone. What is the expressive conduct, and to whom is it being communicated?” Thomas asked.

Paul Clement, a lawyer for the Big Tech trade group NetChoice, said that the platforms “are sending a message to that person and to their broader audience that that material” isn’t allowed. As a result, users are “not going to see material that violates the terms of use. They’re not going to see a bunch of material that glorifies terrorism. They’re not going to see a bunch of material that glorifies suicide,” Clement said.

Thomas asked who is “speaking” when an algorithm performs content moderation, particularly when “it’s a deep-learning algorithm which teaches itself and has very little human intervention.”

“So who’s speaking then, the algorithm or the person?” Thomas asked.

Clement said that Facebook and YouTube are “speaking because they’re the ones that are using these devices to run their editorial discretion across these massive volumes.” The need to use algorithms to automate moderation demonstrates “the volume of material on these sites, which just shows you the volume of editorial discretion,” he said.

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