Should Facebook and Twitter Be allowed to censor “free speech”?
This is the question currently before the Supreme Court.
Should social media titans be allowed to suppress certain messaging while amplifying other messaging?
The American public views social media giants as characteristically left leaning organizations.
This is evidenced by the behaviors of tech CEOs who have publicly expressed left leaning ideology. Many high-profile billionaires routinely affirm their commitment to liberal ideas like social equity, climate reform, and wealth redistribution. Even if these billionaires are technically conservative, they tend to conform their public imagery to whatever politics are in style.
Additionally, polls have shown that big tech companies have employed overwhelming numbers of liberal and left leaning employees. Surveys of campaign contributions and employee polls, for example, at Netflix show that 98% of employee campaign donations went to democrats. Other explanations include the fact that many big tech companies are located in blue states.
This public perception of social media companies has been further perpetuated by users who claim their conservative viewpoints on social media are being censored.
In an Amicus Curiae brief submitted by the Babylon Bee, a list of ten headlines are offered to highlight that social media companies give preferential treatment to liberal messaging over conservative messaging to a degree that results in absurd outcomes.
For example, in 2021 Trump was banned from Twitter for “inciting violence at the capital, among other things”, while the Taliban, a violent terrorist organization who was responsible for killing 13 American soldiers in the same year, was able to keep their account open.
The Bee cited another example of conservative censorship including a Spanish politician who was banned from Twitter for claiming that men could not get pregnant.
The Bee also cited an example of an “Police Officer of the year” advertisement which Facebook declined to boost for no reason. Or, the fact that the Chinese Communist Party wasn’t being censored on Twitter for promoting COVID-19 misinformation while a slew of others were…And an allegation that Instagram was forcing users to follow the white house account.
During the pandemic, Facebook banned users from posting that COVID was a man-made virus from Wuhan.
The censorship policies of social media platforms have also been influenced directly by liberal politicians. The White House admitted in 2021 that it is in close communications with social media platforms and flags problematic posts for review.
Some of these allegations may or may not have been thoroughly substantiated, but the point remains. Many feel that social media censors conservative viewpoints while amplifying liberal viewpoints.
Texas And Florida Bills
In response to the growing distrust of social media, Texas and Florida both passed laws that made it harder for large social media platforms to censor conservative viewpoints. The laws banned “viewpoint discrimination” for social media companies with 50 million or more active users.
Both laws were passed in the wake of the Jan. 6, 2021, attacks on the U.S. Capitol in response to a belief that social media companies were censoring their users, especially those with conservative views. The laws contain provisions that limit the choices that social media companies can make about which user-generated content to present to the public, and they also contain provisions that require social media platforms to provide individualized explanations to users about the platforms’ editorial choices. The laws allowed platforms to categorically ban certain topics like pornography, but in a “view point neutral” way… whatever that means.
Social media platforms, represented through an industry organization called Netchoice, sued the Attorney General, asking the court to enjoin the state from enforcing the law. That means, they basically submitted a lawsuit that said please make sure the state doesn’t enforce this law because it is unconstitutional.
The Texas bill was appealed to the 5th circuit and the Florida bill to the 11th circuit.
The 5th circuit held that the censorship was not even “speech” to begin with and social media platforms shouldn’t be given “editorial discretion” when it comes to censoring the speech of others. The court ruled that unlike a newspaper, which is a curated medium for presenting factual information, social media sites are mere conduits for the free flow of ideas. Read the 5th circuits decision below.
The 11th circuit ruled the opposite, positing that social media sites should be given editorial discretion when censoring the content of their users, and that the law would be unduly burdensome.
Read the 11th circuit below
Supreme Court
At the Supreme Court level, amicus briefs were filed up the wazoo, from major tech companies including Yelp, Reddit, and satire sites like that Babylon bee. David Mamet, the guy who produced Glengarry Glen Ross, also chimed in with his own zany amicus brief that was presented in the form of a short story about a pilot who loses his way because he is unable to read his map… Mamet draws parallels to the legal issue at hand, but they are kind of far fetched.
Read Mamet’s brief here:
Oral arguments were heard, and theoretical discussions involving white supremacist dog photos ensued.
In defense of white supremacists, but mainly for purposes of a hypothetical, Elana Kagan asked aren’t white supremacists or antisemites also capable of posting cute cat pictures on the internet?
To which the lawyer for social media companies, Paul Clement, astutely replied “you’d ask.. why are all the dog photos white?”
In defense of social media companies, Clement also said : “if I want a catholic website where I keep all the protestants out, I should be able to”
Listen to the oral arguments here
Kavanaugh, Kagan, and Barrett all seemed to signal skepticism over the laws, while Alito and Thomas sounded swayed.