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Should social media companies have First Amendment protections?
May 26, 2022

Should social media companies have First Amendment protections?

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Circuit court decisions are split on state laws that govern platforms like Twitter. The issue is now before the U.S. Supreme Court.

The question of who is allowed to use platforms like Twitter or Facebook — and who decides what users can say on those platforms — is increasingly becoming a legal issue.

A Texas court decision handed down earlier this month gave the go-ahead to a law that gives users the right to sue social media platforms for removing content based on “viewpoint.”

This week, however, another court found parts of a similar social media law in Florida unconstitutional.

Issie Lapowsky, Protocol’s chief correspondent, joins us to explain just what was in Florida’s initial law. The following is an edited version of her conversation with Marketplace’s Kimberly Adams.

Issie Lapowsky: This law would prohibit these social media companies from de-platforming politicians. It would prohibit them from prioritizing or de-prioritizing any posts about those politicians in people’s feeds. That law was pretty immediately blocked. It’s been awaiting appeal, and that block is still in place. And they basically said that this law is very likely to violate the First Amendment, or at least the core parts of the law are. That’s a very different result than we’ve gotten in Texas, which is facing a similar law and a court there recently lifted an injunction allowing that law to take effect.

Kimberly Adams: How does the law in Texas compare to the law in Florida?

Issie Lapowsky smiles in her headshot.
Issie Lapowsky (Courtesy photo)

Lapowsky: It gets at this same idea around alleged censorship alleged bias, but rather than just taking aim at the politician’s speech, it is a little bit broader. It says that these platforms would be prohibited from discriminating on the basis of viewpoint. “Viewpoint” is, obviously a very fuzzy term, very open to interpretation. And the platforms are in a really, really bad shape if this law is allowed to stand because they stand to just face innumerable lawsuits where, you know, a platform like Facebook may have removed something because it seems [to be] hate speech, but somebody could sue them and say, “That’s not hate speech, you removed it because I’m a Republican,” or “You removed it because of my conservative viewpoint,” or whatever it might be. It would be really catastrophic for the industry, not to mention the effects it would have on what people would be forced to see on these platforms. Because if a company like Facebook is afraid it’s going to get sued out the wazoo, it’s going to really chill the amount of content moderation that they do. That can mean a huge increase in the amount of hate and violence that appears on these platforms in Texas. And so the plaintiffs in that case, who are big tech industry groups, have gone to the Supreme Court and said, “Please toss out this Fifth Circuit decision and put the injunction back in place.”

Adams: Apart from sort of the legal and constitutional validity of this, how possible is it for tech companies to impose those kinds of restrictions on a state-level basis?

Lapowsky: We do see places in the world where tech companies do geo-fence their policies, right? So, a country like Germany has very different speech rules than a country like the U.S. And we’re seeing that increasingly of laws around the world, all of which are trying to demand something different.

Adams: Since the Fifth Circuit [Court of Appeals] lifted that injunction, what does that mean in practice for these tech companies?

Lapowsky: The industry groups that represent them, NetChoice and CCIA, a pretty immediately filed an emergency application with the Supreme Court, asking the court to put the injunction back in place. And so basically, what we’re waiting on now is the Supreme Court’s decision. They won’t decide on the fundamental, underlying legality of that Texas law. They’re just deciding in this instance on the injunction.

Justice Clarence Thomas is famously quiet when it comes to participating in Supreme Court oral arguments. As Issie mentioned, one thing he has been outspoken about is reforming Section 230 — that’s the law that says internet platforms aren’t legally responsible for what people post on them.

Issie has a piece on the Florida and Texas legal battles, as well as an article on Justice Thomas, who has argued social media companies should be treated like “common carriers,” think utilities like electric or gas companies, and subject to more regulations.

And last month, you might’ve heard about Florida revoking Disney’s special tax status in the state after the company came out against the state’s so-called “Don’t Say Gay” law.

Well, Disney’s taxes weren’t the only thing affected. In Florida’s social media law, there was initially a carve-out for companies like theme parks to avoid lawsuits. Governor Ron DeSantis overturned that provision, meaning Disney could now be held to the same standards as Facebook, according to The Intercept.

And if you’re curious about how social media platforms and advocacy groups are weighing in in these cases, Ars Technica has a summary on the legal briefs several of those groups filed with the Supreme Court, arguing the Texas law “poses a direct threat to healthy and safe online communities.” As of this taping, the Supreme Court hasn’t issued its decision yet. Court watchers are expecting it any day now.

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The team

Michael Lipkin Senior Producer
Stephanie Hughes Producer
Jesus Alvarado Assistant Producer