So far, the only thing clear about state efforts to regulate the content of social media websites is that judges are divided on what to do about it.
The U.S. Supreme Court by a 5-4 vote stopped a Texas law on social media from taking effect while a case works its way through the courts. That overruled a 2-1 decision by a federal appeals court to let the Texas law take effect — which in turn had overruled a U.S. district judge’s injunction against the law.
Meanwhile, in a separate case based on a Florida social media content law, a different federal appeals court ruled 3-0 that the Sunshine State’s action was a violation of the First Amendment. The ruling included a 67-page document explaining the reasoning.
This court ruled, according to The Washington Post, “that social media companies’ efforts to curate the content of their platforms was speech that the government could not control.”
Laws with two different rulings from two appeals courts is a case that’s tailor-made for the Supreme Court. If the Texas and Florida laws wade into the area of requiring a balance of political opinions on social media, or preventing commentary from being removed based on a writer’s political beliefs, that seems likely to be struck down by the First Amendment’s freedom of speech protections.
Critics of big social media companies like Facebook and Twitter say they are more likely to remove conservative opinions. This belief is what led Texas and Florida, two states run by conservatives, to pass their regulatory laws.
It’s impossible to see how these laws stand up to constitutional scrutiny. First of all, if it’s true that conservative opinions are more likely to be censored, there’s still plenty of conservative commentary on Facebook.
Second, the First Amendment rights in question do not belong to the people posting on social media. The rights belong directly to the social media companies themselves, which own the platforms. They are allowed to decide what goes on their site and what doesn’t.
Finally, if the Supreme Court did apply content restrictions to social media, it would have to explain why these limits also would not apply to TV stations, newspapers and other forms of communication that clearly have the right to decide what they publish, free of any dictates from the government. If, for example, a newspaper prints a letter to the editor that’s critical of local government, will it then be required to print one that’s complimentary?
Fairness in presenting different opinions is appreciated and respected. But it is certainly not required. Does anybody seriously think that CNN, MSNBC or Fox News devote the same amount of time to “both sides?” Will former President Donald Trump’s new website, Truth Social, be fair with the opinions it publishes about the results of the 2020 election?
These laws in Texas and Florida are a smokescreen, distracting attention from the true problem with social media sites. And that is: Congress has given internet companies a financial incentive to distribute extreme content because federal law says these companies are not legally responsible for anything their customers post online.
It is human nature to be attracted to the dramatic, the scandalous and the controversial. Sites like Facebook, with billions of users, make their money from selling advertising. And they sell more ads and make more money when controversial commentary gets the widest possible attention.
If governments want to turn down the shrill volume of social media, just make the companies liable for what appears on their sites — same as all other media companies. A few words added to or removed from Section 230 of the Communications Decency Act is all that’s needed.
— Jack Ryan, McComb Enterprise-Journal
