The Supreme Court handed social media companies a win on Tuesday by blocking, for now, a Texas law that would have banned large apps including Facebook and Twitter from weeding out messages based on the views they expressed.
But the issue may return to the court, and at least three justices seem open to considering a question that could fundamentally change social media as we know it: Do sites like Facebook have a First Amendment right to allow some material and not others, or an obligation to distribute almost anything?
The justices’ interest shows that we’re all still figuring out how to deal with a handful of social media companies having enormous influence over public conversation. Few people are happy about this reality, but it’s not clear what to do about it.
Let me lay out how we got here:
What the First Amendment says:
The First Amendment restricts government censorship, but it doesn’t apply to decisions made by businesses.
You may not agree with the internet companies’ choices, but First Amendment scholars have said that Facebook had a constitutional right to suspend the account of Donald Trump. Twitter can decree that people are not permitted to spam their followers with marketing pitches. The government has not intervened in those choices.
Enter Texas. And Florida.
Conservative politicians have long complained that Facebook, Twitter, YouTube and other social media companies unfairly remove or demote some conservative viewpoints. I have not seen credible research that supports this view, but many people believe it.
In response to this, a Texas law signed last year, H.B. 20, prohibited large social media companies from censoring people based on the “viewpoint of the user or another person.”
Associations of internet companies and some constitutional rights groups said that the Texas law violated the First Amendment because it allowed the state to tell private businesses what kinds of speech they could or could not distribute.
The internet companies went a step further and said social media apps had the same broad First Amendment protections against government interference into “editorial judgment” that apply to news organizations.
Texas countered that Facebook, Twitter and the like don’t have such First Amendment protections because they are more like old telegraphs, telephone companies and home internet providers. More government interference is permitted for such “common carriers” because people cannot be blocked from using essential tools of communication.
A majority of justices said on Tuesday that the Texas law could not go into effect while an appeal was winding its way through the court system. They did not decide on either side’s interpretation of how the First Amendment should apply to 21st-century social media.
What happens next:
A federal appeals court recently deemed unconstitutional a Florida law passed last year that similarly tried to restrict social media companies’ discretion over speech. The Supreme Court may eventually take up either the Texas or Florida law and make a ruling on its constitutional merits.
On Tuesday and in past comments, three justices have expressed an openness to considering how the First Amendment should or shouldn’t apply to social media.
In a case last year, Justice Clarence Thomas brought up the idea of social media having similar responsibilities as common carriers not to restrict speech. And on Tuesday, Thomas and Justice Neil Gorsuch signed onto a dissenting opinion written by Justice Samuel Alito that said: “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.” Alito also wrote that he had “not formed a definitive view on the novel legal questions” brought up by the Texas social media law.
These cases force us to wrestle with a fundamental question about what kind of world we want to live in: Are Facebook, Twitter and YouTube so influential in our world that the government should restrain their decisions, or are they private companies that should have the freedom to set their own rules?
Read more on the Texas law from our colleagues at DealBook.
In this New York Times guest essay from December, Jameel Jaffer and Scott Wilkens of the Knight First Amendment Institute at Columbia University wrote that social media platforms are neither like newspapers nor like common carriers.
Before we go …
The online trail of the accused mass killer in Buffalo: My colleagues Steven Lee Myers and Stuart A. Thompson wrote that the persistent prevalence of racist and violent material online “reveals the limits of the efforts by companies like Twitter and Google to moderate posts, images and videos that promote extremism and violence.”
Bring back this feature from the 1990s: The old AOL Instant Messenger let people set up “away messages” that discouraged people from starting a conversation if you didn’t want to be bothered. Lauren Goode, a writer for Wired, said that it was a simple but powerful feature to free people from distractions and that she misses it.
A lighting assistant came to the restaurant for optimal video recording of appetizers. This Eater essay is a thoughtful reflection on how TikTok is changing the ways that we think about restaurants in both helpful and hurtful ways.
Hugs to this
The Oregon Zoo and some Girl Scouts helped release endangered pond turtles into the wild. The turtles and the Girl Scouts looked like they had a blast.
We want to hear from you. Tell us what you think of this newsletter and what else you’d like us to explore. You can reach us at [email protected].
If you don’t already get this newsletter in your inbox, please sign up here. You can also read past On Tech columns.