On Monday, the Supreme Court heard oral arguments in a landmark case about laws that prevent social media companies from censoring user-generated content that they find objectionable.  A pair of laws in Texas and Florida, which are being challenged by social media companies, regulate whether firms can remove posts from their sites and come in response to claims that conservative viewpoints have been censored on outlets like Facebook and X (formerly Twitter).  These laws sprang up in part as a response to the events of January 6, 2021, and the perceived unjust censorship of conservatives in relation to those events.

The oral arguments for the case (Moody v. NetChoice LLC) lasted for nearly four hours and resulted in a divided set of opinions among the justices.  Some justices suggested that the laws are too strict and may infringe upon the companies’ First Amendment rights, while others expressed concerns that unregulated social media moderation could suppress important information and fair public debate.

Those skeptical of the laws maintain that the state does not have the right to interfere with social media platforms’ editorial decisions.  Chief Justice John Roberts asked, “I wonder, since we’re talking about the First Amendment, whether our first concern should be with the state regulating what, you know, we have called the modern public square?”  Matt Schruers, president of the Computer & Communications Industry Association, argued, “There is nothing more Orwellian than the government trying to dictate what viewpoints are distributed in the name of free expression.”

The other side of the litigation has responded by arguing that the big tech companies are practicing exactly that kind of Orwellian censorship — dictating “what viewpoints are distributed” — with regard to their users.  From this point of view, the people whose free speech is under threat are not the CEOs of tech companies, but the users of the social media sites.  Florida solicitor general Henry Whitaker stated that social media platforms are “in the business of transmitting their users’ speech,” and they “do not have a First Amendment right to apply their censorship policies in an inconsistent manner and to censor and deplatform certain users.”

Much of the controversy seems to circle around how to properly classify social media, which are a relatively new medium of communication and public discourse.  Should they be treated like a newspaper or magazine, thus receiving the same First Amendment protections that the press does, or should they be considered more like an email service or phone provider, which wouldn’t have the right to censor its users, especially based on their political viewpoints?  The tech companies are building their case partly on the 1974 Supreme Court case Miami Herald v. Tornillo, in which Florida demanded that the newspaper carry certain op-eds it didn’t want to publish.  Florida lost that case.

But is a social media site the same as a newspaper?  Surely not — at least not up to this point.  A traditional newspaper serves the purpose of informing the public of events, with a smattering of opinion pieces on the side, and often with some kind of editorial bent determined by the heads of the paper.  A social media site is a network of users sharing information.  It is merely a setting for conversations to take place among individuals, not a curated collection of polished articles all stemming from the same source (like a newspaper’s editorial board).  The content on such a site is not the company’s speech — which they would, in theory, have First Amendment protections for.  It is the users’ speech.  Thus, to speak of Florida’s or Texas’s regulation of social media’s censoring procedures as an infringement on the company’s speech is, to me, a completely upside-down way to view the matter.  Surely it’s the users whose right to speak the truth is being threatened here, and the states are trying to protect it.

To complicate matters further, the close alliance between government and Big Tech and the powerful influence that social media can have on elections means that Big Tech’s censorship of conservatism is a powerful political act.  Big Tech, arguably, has a degree of power and influence that rivals that of the government in certain areas.  If the government engaged in the same blatant censorship of conservatism that social media companies have, there’d be (I hope) a great outcry.  So why should the tech oligarchs get away with it?  In my mind, this is one the line of argumentation that the attorneys for Texas and Florida ought to take.

Now, I firmly believe that speech has limits.  One should not be free, for example, to threaten others with violence, to defame others, to knowingly promote falsehoods that harm society.  But in some sense, that isn’t what this case is even about.  The question before us seems to be, who will regulate the public square and our political discourse in this country (which largely takes place on social media)?  The government, or private companies and their unelected CEOs?

Image: Joe Ravi via Wikimedia Commons, CC BY-SA 3.0.