Platform moderation, speech, and the courts

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In May, the US Court of Appeals for the Eleventh Circuit struck down most of the provisions of a social media law, enacted by the state of Florida in 2021, that would have made it an offense for any social media company to “deplatform” the account of “any political candidate or journalistic enterprise,” punishable by fines of up to $250,000 per day. In a sixty-seven-page decision, the Eleventh Circuit judges ruled that any moderation decisions made by social media platforms such as Twitter and Facebook, including the banning of specific accounts, are effectively acts of speech protected by the First Amendment. 

Last week, however, the US Court of Appeals for the Fifth Circuit came to a nearly opposite  decision, upholding a Texas law, enacted last year, banning the major social media platforms from removing any content based on “the viewpoint of the user or another person [or] the viewpoint represented in the user’s expression or another person’s expression.” In the Fifth Circuit opinion, the court ruled that, while the First Amendment guarantees every person’s right to free speech, it doesn’t guarantee corporations the right to “muzzle speech.” The Texas law, judges said, “does not chill speech; if anything, it chills censorship. We reject the idea that corporations have a freewheeling First Amendment right to censor what people say.” 

The Fifth Circuit court dismissed many of the arguments technology companies such as Twitter and Facebook made in defense of their right to moderate content, arguing that to allow such moderation would mean that “email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business.” The court seemingly endorsed a definition used in the Texas law, which states that the social media platforms “function as common carriers,” providing essential communications tools in much the same way that telephone and cable operators do. NetChoice and the Computer and Communications Industry Association—trade groups that represent Facebook, Twitter, and Google—argued before the Fifth Circuit that the social media platforms should have the same right to edit content that newspapers have, but judges rejected this idea. “The platforms are not newspapers,” Judge Andrew Oldham wrote in the majority opinion. “Their censorship is not speech.” 

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This week, Ashley Moody, the attorney general for Florida, asked the Supreme Court to decide whether states have the right to regulate how social media companies moderate content, citing the “irreconcilable divide” between the two circuit court decisions. Should the court hear the case, its decision could have ramifications beyond just Florida and Texas, affecting dozens of other states—including Oklahoma, Indiana, Ohio, and West Virginia—that have either passed or are considering social media laws that explicitly prevent the platforms from moderating content.

“This is a really major question: How do we regulate social media platforms?” Genevieve Lakier, a professor at the University of Chicago Law School, said in an interview with the Washington Post. “I think it could shape the operation of the internet really significantly. If these laws are upheld, it’s going to require the platforms to host a lot of speech that they don’t want to host.” While neither the Texas nor the Florida law mentions Donald Trump by name, both were passed after the former president was banned by most of the major social media platforms, including Facebook and Twitter, following the attack on the US Capitol on January 6, 2021. Republican lawmakers have long claimed that the platforms routinely exhibit anti-conservative bias in their content moderation practices, which researchers have refuted. 

Even before the petition from Florida, several Supreme Court justices had already suggested that they were eager to confront the platform moderation issue head-on. In a hearing in May, when the Supreme Court was asked to keep the Texas law from taking effect, Justice Samuel Alito wrote in a dissenting opinion that the case “concerns issues of great importance that will plainly merit this Court’s review.” Alito went on to say that social media platforms have transformed the way people communicate with one another and obtain news, noting, “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies”—a statement some took as evidence that Alito is open to questioning whether the First Amendment protects platform moderation.

The “common carrier” argument could also get a favorable hearing from some on the Supreme Court, based on comments made by Justice Clarence Thomas in a decision last year. Thomas cited a 1914 Supreme Court ruling that said making a private company a common carrier may be justified when “a business, by circumstances and its nature…rise[s] from private to be of public concern,” and that “there is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.” In the same decision, Thomas said that “the concentrated control of so much speech in the hands of a few private parties” was unprecedented, and that the court “will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure.”

What all of this means, Professor Lakier told the Post earlier this year, is that “the First Amendment is to some degree up for grabs.” Old principles about free speech and rights, she said, “are being pushed and pulled and reimagined in light of changing technological conditions and changing political alignments.”

Here’s more on the platforms and moderation:

• Editorial judgment? Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, writes that the First Amendment questions presented by this impending Supreme Court case “are immensely important—questions including whether social media companies exercise ‘editorial judgment’ when they decide what content to allow on their platforms, in what circumstances governments can override that judgment, and how courts should evaluate laws that burden that judgment in the name of transparency, fairness, or privacy.” If the Supreme Court agrees to hear the case, Jaffer said, “its answers to these questions will define free speech online for a generation.”
• Everything in moderation: The Journalism Competition and Preservation Act, introduced recently by Senator Amy Klobuchar, wasn’t supposed to be about platform moderation; rather, the law would allow media outlets to negotiate with the platforms for payment for their news, similar to a law in Australia. During discussion of the JCPA last week, however, Senator Ted Cruz introduced an amendment that prevents the platforms and news outlets from bringing up issues related to moderation during their negotiations. Senator John Kennedy, cosponsor of the bill, said the amendment “bars Big Tech firms from throttling, filtering, suppressing or curating online content.” It’s not clear whether this restriction applies only to moderating the content of outlets the platforms are negotiating with.
• Algorithmic bias? An internal report on Facebook’s moderation of Israeli and Palestinian content shows that the platform deleted Arabic content at a far greater rate than Hebrew-language posts last May, as Israeli forces conducted air strikes following Palestinian protests against forced displacement, The Intercept reported. Facebook’s actions “appear to have had an adverse human rights impact…on the rights of Palestinian users to freedom of expression, freedom of assembly, political participation, and non-discrimination, and therefore on the ability of Palestinians to share information and insights about their experiences as they occurred,” the report states. The report was commissioned by Meta, Facebook’s parent company, last year, and was written by Business for Social Responsibility, an independent consulting firm.

 

Other notable stories:

• On Wednesday, Iran’s president, Ebrahim Raisi, canceled an interview with CNN anchor Christiane Amanpour at the last minute, after Amanpour refused to wear a headscarf for the broadcast. The request came amid protests that have swept Iran in response to the death of Mahsa Amini, a Kurdish woman who died in detention after she was arrested by Iran’s morality police for allegedly violating a headscarf ordinance.
• British television channels allowed Buckingham Palace to veto the use of certain footage from Queen Elizabeth II’s state funeral, The Guardian reported. “Royal staff sent messages to the BBC, ITV News and Sky News during the event with the timestamps of footage they wished to exclude from future news broadcasts and social media clips,” The Guardian reported. “As a result, five short pieces of video featuring members of the royal family were removed from circulation.” The decision reportedly caused “unease among some journalists.” 
• On Thursday, CNN announced that Jake Tapper, who currently hosts the network’s 4pm news show, The Lead, will take over CNN’s 9pm prime-time slot, formerly held by Chris Cuomo, from October 10 through the midterm elections. The schedule change “comes as [new CEO Chris] Licht and CNN’s new corporate ownership work to rectify the news outlet’s recently sluggish ratings and move on from a scandal that led to the ouster of Cuomo and the network’s former president, Jeff Zucker,” The Hill writes. Jon Allsop has written extensively about the changes at CNN for CJR.  
• A new study, titled “Social media sharing of low quality news sources by political elites,” found that politicians from mainstream parties in the UK and Germany post far fewer links to untrustworthy websites on Twitter than politicians from the US do. American politicians “posted a much higher percentage of untrustworthy content in their tweets, and that share has been increasing steeply since 2020,” the study’s authors wrote.
• Nine major daily newspapers across Canada will stop publishing printed versions on Mondays as of October 17, according to a report from the Toronto Star. Postmedia, a national chain that owns daily newspapers in most major Canadian cities, said there will no longer be Monday print editions of the Vancouver Sun and The Province, in British Columbia; the Calgary Herald, Calgary Sun, Edmonton Journal, and Edmonton Sun, in Alberta; the Ottawa Citizen and Ottawa Sun, in Ontario; and the Montreal Gazette, in Quebec. A Postmedia spokesperson blamed the “rapidly changing news consumption habits of their readers, advertisers needs, and high cost of newspaper printing and delivery.”
• Vox Media published its annual map of the media landscape, showing which tech and/or media conglomerates own specific shows and streaming networks. Reporters Rani Molla and Peter Kafka noted that services like Netflix have lost much of their value, in part because, they write, “Wall Street is now much more ambivalent about streaming.” Traditional players have also lost much of their value in the past few years, Molla and Kafka report, noting that WarnerMedia—which, as Time Warner, was worth $85 billion in 2016—”has been handed over to the Discovery cable networks, which has a combined value of only about $30 billion.”
• Researchers with the Reuters Institute for the Study of Journalism at Oxford University found that levels of trust in news on social media and messaging apps “is consistently lower than audience trust in information in the news media more generally.” Their report—the latest from the Reuters Institute’s Trust in News project—drew on survey responses collected in the summer of 2022 in Brazil, India, the UK, and the US, and found what it called “gaps in trust” for most platforms in each of those four countries. “News about politics is viewed as particularly suspect and platforms are seen by many as contentious places for political conversation,” the report states.

“Other notable stories” were compiled with the help of Pesha Magid, Mercy Orengo, and Emily Russell.

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Mathew Ingram was CJR’s longtime chief digital writer. Previously, he was a senior writer with Fortune magazine. He has written about the intersection between media and technology since the earliest days of the commercial internet. His writing has been published in the Washington Post and the Financial Times as well as by Reuters and Bloomberg.