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This story was initially published as part of tech News Now, TheStreet's daily tech digest.
About three years ago, following the decision by some social media platforms, notably Twitter, to ban former President Donald Trump following the attack on the Capitol on January 6, 2021, two Republican states signed bills designed to curb efforts to content moderation of big tech social networks. .
Laws, installed by Texas and Florida, differ in their details, although both seek to avoid “unfair” censorship by Big tech, specifically against conservative perspectives. He florida law — tech/”>SB 7072 – Additionally, it prohibits big tech from de-platforming Florida political candidates.
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“If Big tech censors inconsistently enforce the rules, to discriminate in favor of the dominant ideology of Silicon Valley, they will now be held accountable,” Florida Governor Ron DeSantis said at the time.
tech-to-congress-forget-about-antitrust-pass-a-privacy-law/”>NetChoice and the Computer and Communications Industry AssociationTwo groups representing a list of Big tech names, including Meta, have challenged the laws, arguing they violate First Amendment rights.
Central to the case is the question of whether social media platforms should be considered news publishers, which would grant them editorial freedom, or telecommunications companies, which would require them to broadcast all speech.
“Just as Florida can't tell the New York Times what op-eds to publish or Fox News what interviews to broadcast, it can't tell Facebook and YouTube what content to broadcast,” the groups claim. saying. “When it comes to disseminating speech, decisions about which messages to include and exclude are the responsibility of private parties, not the government.”
States have argued the opposite; citing the importance of social networks as a digital marketplace, they have discussed that the platforms should be treated like telephone companies.
Groups representing companies have also argument that the laws in question would allow the dissemination of “objectionable views,” including propaganda and hate speech.
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Elon Musk, Twitter and algorithms
The Supreme Court on Monday heard oral arguments related to the two laws in question.
A key focus for the justices involved determining whether content moderation could be considered “expressive,” something that would strengthen the case for protection of the practice under the First Amendment, according to the technology/2024/02/26/supreme-court-social-media-netchoice-texas-florida/”>Washington Post.
Justice Elena Kagan referenced Elon Musk's transmogrification of Twitter into X, suggesting that content moderation policies appear to affect the overall experience of a given platform.
“One day Twitter users woke up and discovered they were users X,” Kagan said. The “rules had changed and their feeds changed. …And all of a sudden, every morning they were getting a different online newspaper, so to speak.”
The judges also questioned the role of social media algorithms in their relationship to the expression, or lack thereof, of content moderation policies.
Judge Amy Coney Barrett, citing a hypothetical example of a TikTok algorithm boosting pro-Palestinian posts over pro-Israel posts, said: “If you have an algorithm, do it, isn't it speech?”
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The judges also questioned the broadness of the laws, raising their application to other platforms, including Uber, Etsy and Google Search.
Kagan suggested that she might agree that Florida's law is unconstitutional when applied to a Facebook feed, but that it might be valid when applied to services like Uber.
Justices Ketanji Brown and Sonia Sotomayor each questioned the breadth of the laws, with Brown also expressing concern about the breadth of arguments made on behalf of the platforms.
“This is very, very broad. “It’s covering almost everything,” Sotomayor said of the laws. “The only thing I know about the Internet is that its variety is endless.”
The court is expected to decide the cases in June.
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Expert legal opinion
Several prominent liberal professors from Harvard, Columbia and Fordham filed a brief last month that took a more middle-of-the-road approach, giving credit to one component of the Texas law and asserting that the laws could still lead to “amplified hate.” speech.”
“To be clearer: Facebook, Twitter, Instagram and TikTok are not newspapers,” the professors say. saying. “They are not publications with limited space that depend on editorial discretion when choosing which topics or issues to highlight. Rather, they are platforms for widespread public expression and discourse. “They are their own beast, but they are much closer to a public shopping center or a railway than to The Manchester Union Leader.”
The Reporters Committee for Freedom of the Press has referred to the laws as “dangerous infringements on editorial discretion protected by the First Amendment.”
Richard L. Hasen, jurist and professor at the University of California, Los Angeles, said in a short that the platforms' editorial choices are fully protected by the First Amendment, adding that laws like those in question could “encourage violence.”
“Florida and Texas' social media laws, if allowed, would thwart the platforms' ability to moderate social media posts that risk undermining American democracy and fomenting violence,” he said.
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