On Wednesday, U.S. District Judge Robert Pitman blocked a Texas law designed to crack down on perceived censorship by social media companies of conservative posts and ideas. The law would have heavily regulated the content decisions of platforms with 50 million active users (another way of saying Google, YouTube, Twitter and Facebook). Judge Pitman determined that the statute violates the First Amendment freedom of speech rights of the social media platforms.
The legislation, signed into law by Gov. Greg Abbott in September, would have treated large social media platforms as “common carriers.” It would have allowed any Texas resident who believes he was improperly “censored” to sue the tech giants. The state attorney general would also have been empowered to sue on behalf of users.
Judge Pitman objected. He wrote that social media companies have a right to exercise editorial judgment and that interference in that process “chills the social media platforms’ speech rights.”
Judge Pitman’s ruling reminds us that the First Amendment is meant to protect Americans from governmental censorship. Decisions by private companies to modify or remove content from their platforms are protected by the First Amendment and cannot be prevented by government action.
Looking beyond this ruling, however, it is fair to note that the dominance of large social media companies in the marketplace of ideas is so complete that to be demonetized and “deplatformed” by big social media can sometimes have the same effect as censorship. Removing a post makes sense when, for example, the content poses a threat to national security or to public health, and when the deplatformed person has engaged in a persistent pattern of posting such harmful material. The absence of clarity about how content moderation decisions are made and the standards that guide the decisions have given rise to understandable concerns and calls for change. The Texas law was a clumsy attempt to address these concerns.
An example of social media company conduct underlying such concerns was highlighted in a Sept. 13 Wall Street Journal article, which was part of its series questioning Facebook’s practices. The Journal revealed that Facebook has “whitelisted” elite users who enjoy broader and more lenient standards for their content than most users. “We are not actually doing what we say we do publicly,” an internal Facebook review reported. The review called the company’s actions “a breach of trust” and added: “Unlike the rest of our community, these people can violate our standards without any consequences.”
Social media companies are standing on solid constitutional grounds but remain in risky political territory by testing the patience of their customers. The status quo is sure to tempt lawmakers to pass more ill-considered laws. Social media companies should consider:
Such requirements could be enacted in exchange for the special liability protection internet-based companies enjoy. Senators Brian Schatz (D-HI) and John Thune (R-SD) have proposed the PACT Act, a bipartisan measure that would require social media companies to adopt many of these provisions in exchange for having legal immunity under Section 230 of the Communications Decency Act for content posted on their platforms by third parties.
For now, however, the courts are right. If First Amendment rights can be curtailed for social media companies, then they can be curtailed for anyone.