By: Rebekah Gil
For years, social media platforms have been the main source of news and political information for users across the globe. However, those platforms have also been questioned on the reliability of the content published and promoted throughout their apps.
In August 2021, Texas passed House Bill 20 which prohibits large social media platforms from moderating content based on a user’s viewpoint and geographic location.[1] The bill additionally states that it applies to platforms regardless of whether the viewpoint is expressed on a social media platform or through another medium.[2] Some of those large social media platforms are represented by trade associations whose mission is to make the internet safe.[3] NetChoice is an example of one association, created in 2001, that represents some of the largest social media platforms like Meta, TikTok, and X.[4] Their specific mission states they “work to make the Internet safe for free enterprise and free expression”.[5]
Right before the H.B. 20 bill passed, NetChoice filed a suit against Texas, arguing the bill violated social media platforms’ First Amendment right to free speech.[6] The main argument was focused on the idea that social media platforms are similar to newspapers and similarly have a constitutional right to protected speech in the form of editorial discretion.[7]
On September 16, 2022, after back and forth between the courts, the Fifth Circuit upheld Texas’s law entirely.[8] In agreement with Texas’s main argument, the Fifth Circuit labeled social media platforms as “common carriers”.[9] Meaning, they facilitate the transmission of speech, like phone companies and postal services.[10] The court concluded that the platform’s censorship is not speech under the First Amendment, and therefore the House Bill remains constitutional.[11] This ruling contradicts an Eleventh Circuit decision decided just five months prior.
Similar to Texas, Florida passed SB 7072 which also regulates social media platforms, and limits their ability to censor and remove content based on political viewpoints.[12] However, unlike the Fifth Circuit, the Eleventh Circuit struck down the social media law in a similar case in which NetChoice was also a party.[13] The court disagreed with the notion of social media platforms acting as “common carriers”.[14] It instead declared that “[p]latforms are private enterprises, not government … entities”, siding with NetChoice that the law violates companies’ free speech rights.[15]
Other tech companies have entered the discussion saying the social media laws, should they remain enacted, will stop tech companies from controlling what content gets published, some of which could be potentially harmful.[16] While the states argue that the law will make sure users have equal access to the platforms.[17]
With both circuits at odds, the Supreme Court granted certiorari of both cases and said on September 29th that it would decide the constitutionality of the social media laws in both Texas and Florida.[18]
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Citations:
- H.R. 20, 87th Leg., 2 Sess. (Tex. )
- Id.
- NetChoice, https://netchoice.org/about/ (last visited Oct. 13, 2023)
- Id.
- Id.
- Nithin Venkatraman, NetChoice, L.L.C. v. Paxton: 5th Circuit Sets Up Supreme Court Battle over Content Moderation Authority of Social Media Giants, Harvard Journal of Law and Technology (Oct. 21, 2022), https://jolt.law.harvard.edu/digest/netchoice-l-l-c-v-paxton-5th-circuit-sets-up-supreme-court-battle-over-content-moderation-authority-of-social-media-giants
7. Rebecca Kern, 5th Circuit Upholds Texas Law Forbidding Social Media ‘Censorship’ — Again, Politico, https://www.politico.com/news/2022/09/16/5th-circuit-upholds-texas-law-forbidding-social-media-censorship-again-00057316 (last updated Sept. 16, 2022).
8. Amicus Brief Moody v. NetChoice, Knight First Amendment Institute at Columbia University, https://knightcolumbia.org/cases/moody-v-netchoice (last visited Oct. 13, 2023)
9. Mark Joseph Stern, The 5th Circuit’s Reinstatement of Texas’ Internet Censorship Law Could Break Social Media, Slate, https://slate.com/technology/2022/05/texas-internet-censorship-social-media-first-amendment-fifth-circuit.html ( May 12, 2022)
10. Id.
11. Netchoice, L.L.C. v. Paxton, 49 F.4th 439, 444
12. Adi Robertson, Florida’s Social Media Moderation Ban Is Probably Unconstitutional, Says Court, The Verge (May 23, 2022, 4:23 PM), https://www.theverge.com/2022/5/23/23138172/eleventh-circuit-blocks-florida-content-moderation-ban
13. Id.
14. Id.
15. Id.
16. Ashley Capoot, Supreme Court to Hear Texas and Florida Social Media Cases over Right to Moderate Content, CNBC, https://www.cnbc.com/2023/09/29/supreme-court-to-hear-texas-and-florida-social-media-cases.html (last updated Sept. 29, 2023)
17. Id.
18. Amy Howe, Justices Take Major Florida and Texas Social Media Cases, SCOTUS Blog (Sept. 29, 2023, 9:48 AM), https://www.scotusblog.com/2023/09/justices-take-major-florida-and-texas-social-media-cases/