Will Our Courts Makes the Social Media Problem Worse?

Democracy Newsletter: October 2023

By Robert Katz

Social media has been a place of connection for friends, families, and persons with shared interests. It also has been a cesspool of hate speech, harassment, and disinformation. The social media companies, for the most part, have policies against the worst sorts of online behavior, though the policies have been sometimes inadequate and poorly enforced. But a recent ruling by the Fifth Circuit US Court of Appeal, a judicial body to the right of the current Supreme Court, undermines the ability of the companies to do even the modest content moderation they have undertaken. The US Supreme Court just announced it will take up the case this term.

Gerd Altmann, via Pixabay

The Fifth Circuit basically agreed with the plaintiffs in this case, though their injunction against the government was narrower than the one issued in the lower court. The court had an expansive view of what constituted coercion, viewing the strong urging of government agencies to take down disinformation about Covid and the 2020 election as a form of censorship. But the various government actors that interacted with social media companies, the White House, the CDC, the FBI, never threatened the companies with prosecution. The worst sanction mentioned was a vague possibility that if social media companies didn’t shape up, the administration might move to change the law that gave social media companies immunity from lawsuits based on content that they hosted.
 
It seems clear that Social media companies should be able to adopt policies to exclude various forms of dishonest or potentially harmful speech, particularly in crucial areas like public health and election integrity, where lives and vital democratic norms are at stake. And governments should be able to advocate, short of prosecutorial threats, that companies limit such speech on their platforms. The Fifth Circuit’s recent rulings, done in the name of perceived discrimination by government and social media companies against conservative views, puts these projects in jeopardy. The Supreme Court will now take up Paxton v. NetChoice, and may very well weigh in on Missouri v. Biden, which the Biden administration has asked the court to do. Although it’s impossible to predict, it is hoped that these rulings will be corrected by a Supreme Court that, while conservative, is not invariably in the service of partisan, right-wing ideology.​ The case, Paxton v. NetChoice (2022), involves a challenge to a Texas law that forbids large social media companies from deplatforming politicians or demoting or labeling the content of its users, unless users engage in certain narrow categories of speech (such as inciting criminal activity). The law was a response by a Texas Legislature that buys into the right-wing narrative that the big social media companies discriminate against conservatives, although indications are that on the contrary these companies have bent over backwards to appease their conservative users and keep their revenue flowing. (See Dan Pfeiffer’s Book, Battling the Big Lie, 2022, Pages 156–170.) The Fifth Circuit upheld the Texas law, declaring essentially that the social media companies should be regarded as common carriers, like phone companies, who are obliged to carry the content of all users, regardless of whether they violated the company’s policies regarding civility or hate speech. The court reasoned that the law did not violate the companies’ First Amendment rights because the law did not seek to censor speech but on the contrary discouraged censorship.
 
The not-quite-as-conservative Eleventh Circuit came to a contrary conclusion when considering a similar Florida law in Moody v. NetChoice (2022). The Court reasoned, in accordance with decades of Supreme Court precedent, that social media companies had a First Amendment right to decide what communications they would host on their platforms. The court recognized that it was the explicit policy of some smaller social media companies to deliberately discriminate against liberals, or conservatives, and it was their constitutional right to do so.

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Gerd Altmann, via Pixabay (modified)

A second case just decided by the Fifth Circuit is further cause for concern. In Missouri v. Biden (2023) the states of Missouri and Louisiana, as well as several people allegedly censored by social media companies, filed suit against the US government, claiming that the Biden Administration had pressured social media companies into censoring them by removing or demoting their content, chiefly concerning Covid 19 and election integrity. It is well-established law that the First Amendment can be violated not only when the government outright censors speech but when it uses coercion to accomplish the same end. For example, in Bantam Books v. Sullivan (1963) the US Supreme Court decided the First Amendment was violated when a Rhode Island government commission sent letters to various bookstores threatening to refer them to the state’s prosecutor if certain books they considered obscene were not removed. Here, the argument is that the US government was so overbearing in its pressure on social media companies to remove certain posts as to have engaged in unlawful government censorship.

The Fifth Circuit basically agreed with the plaintiffs in this case, though their injunction against the government was narrower than the one issued in the lower court. The court had an expansive view of what constituted coercion, viewing the strong urging of government agencies to take down disinformation about Covid and the 2020 election as a form of censorship. But the various government actors that interacted with social media companies, the White House, the CDC, the FBI, never threatened the companies with prosecution. The worst sanction mentioned was a vague possibility that if social media companies didn’t shape up, the administration might move to change the law that gave social media companies immunity from lawsuits based on content that they hosted.
 
It seems clear that Social media companies should be able to adopt policies to exclude various forms of dishonest or potentially harmful speech, particularly in crucial areas like public health and election integrity, where lives and vital democratic norms are at stake. And governments should be able to advocate, short of prosecutorial threats, that companies limit such speech on their platforms. The Fifth Circuit’s recent rulings, done in the name of perceived discrimination by government and social media companies against conservative views, puts these projects in jeopardy. The Supreme Court will now take up Paxton v. NetChoice, and may very well weigh in on Missouri v. Biden, which the Biden administration has asked the court to do. Although it’s impossible to predict, it is hoped that these rulings will be corrected by a Supreme Court that, while conservative, is not invariably in the service of partisan, right-wing ideology.

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Robert Katz served as a staff attorney and supervising attorney at the California Supreme Court from 1993 to 2018. Before that, he was in private practice representing public agencies, and worked as a newspaper reporter covering local government in Santa Cruz County.

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