In a 5-4 vote, the U.S. Supreme Court today made the right call in temporarily blocking a Texas social media censorship law that would have stripped big platforms of any ability to moderate their content.
Industry representatives argued that if Texas HB20 was not stayed, they would be compelled by law to run Russian propaganda on Ukraine, ISIS calls for violence, neo-Nazi posts denying or supporting the Holocaust, and posts encouraging children to take up risky behaviors.
It is important to remember that some speech actually is dangerous. To force companies to post such speech would gut their First Amendment right to moderate their sites. We are hopeful that when a federal judge examines the merits of this law, it will be found to be overweening if not Orwellian.
Social media companies, however, need to acknowledge how they helped create the Texas legislative blunderbuss. Content moderation that sometimes lumps in the merely controversial with the dangerous has understandably outraged many. Given the size of Twitter, Facebook and one or two other big social media networks, to be deposted is to effectively be censored. To be deplatformed can amount to being put out of business and silenced for good.
This is our dilemma. The big social media companies have a First Amendment right not to associate with offensive and dangerous speech. But the practical effect of some of their decisions is to effectively censor a range of viewpoints.
The way to resolve this dilemma is in the approach suggested by the Platform Accountability and Consumer Transparency Act, sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD). The PACT Act would require social media companies to give consumers clear standards for the removal of posts in exchange for the liability protection they receive under Section 230 of the Communications Decency Act. Platforms would give users due process, allowing them to appeal for quick resolution of complaints about being moderated out of the discussion.
Texas legislators should reconsider their approach. In fact, regulations are best pursued at the federal level, not on a state-by-state level. Different social media laws in every state would turn the online world into an unreadable and unmanageable patchwork.