The law on social media censorship remains a threat

Social media giants may have won an important victory earlier this week to prevent a Texas law from coming into force that would limit their ability to moderate content on their platforms. But the battle is far from over and could pose problems for companies like Facebook, Google and Twitter.

On Tuesday, the Supreme Court temporarily blocked Texas law this would prohibit large social media companies from banning users or blocking posts based on political views. For now, the court’s decision puts the law on hold while the constitutional dispute is pending in a lower court.

While the court’s decision is a big win for internet companies, a narrow 5-4 decision and a written disagreement by three conservative judges suggest a ruling on the merits of the case could go in favor of Texas law.

The court’s decision to temporarily block Texas law comes as politicians in Congress and state houses across the country try to regulate social media giants like Facebook and Twitter. In recent years, social media sites have battled a flood of worrying content, including misinformation about coronavirus vaccines, the outcome of the U.S. presidential election and the deadly attack on the U.S. Capitol. They also faced accusations that platforms such as Facebook knowingly served harmful content and content that causes divisions to users to encourage engagement.

Republicans have widely called for reform because of their perception that Silicon Valley’s powers are biased against conservative views and work to censor conservatives, such as former President Donald Trump, while giving liberal politicians a pass. Democrats agree that reforms are needed, but see the problem differently, arguing that social media companies should do more to moderate their platforms, such as removing or restricting hate speech and misinformation.

Much of the debate over how or whether technology companies should be held accountable for content on their platforms focuses on a 25-year-old provision in federal law. Article 230 of the Law on Integrity in Communication protects social media companies from lawsuits due to content published by their users, as well as responsibilities for the way they moderate content. Although Congress has held many hearings, and dozens of laws have been introduced to amend Article 230, nothing has passed at the federal level.

This has led to states like Texas and Florida passing their own legislation to address the problems identified. And with these latest developments in the U.S. Supreme Court, more states could take similar action.

Here’s what the Supreme Court decision means for social media companies, their future content moderation practices, and how it all affects you.

What happened at the U.S. Supreme Court last week?

The Supreme Court ruled 5-4 to grant an emergency residence request by the technology industry to prevent Texas law from taking effect. This verdict annulled the decision of the 5th district, which lifted the previous ban of the district court in Texas. The district court has not yet ruled on the merits and constitutionality of the case.

This means that the law will not enter into force while the case is going through the courts of appeal.

What would Texas law do?

Texas law, known as HB 20, would allow the state of Texas and individual Texans to sue companies if they “censor” their views on social media by banning them, blocking them, removing their posts, revoking the priority of their posts, or otherwise discriminating against their posts. on social media.

The law also requires social media companies to publicly disclose how they moderate content and how they use search, ranking, or other algorithms.

The law only applies to social media companies with 50 million users or more, which includes companies such as Facebook, Twitter, Google’s YouTube, Snap and TikTok.

What is the significance of this case?

Texas law could drastically change the way social media works. The law would limit the way these companies monitor their platforms and eradicate hate speech, misinformation or other content that violates their terms of use.

The technology industry and its supporters, including the NAACP and groups representing LGBTQ people, have warned that the law could lead to a flood of violent and extremist rhetoric that could be considered political “views” on platforms such as Facebook, Twitter and YouTube.

Social media platforms claim that Texas law violates their right to freedom of speech under the First Amendment. Because they are private companies, not government entities, they claim to have the right to control what content is distributed on their websites and platforms.

“We are encouraged that this attack on First Amendment rights has been halted until a court can fully assess the consequences of a poorly designed Texas statute,” said Matthew Schruers, president of the Computer and Communications Industry Association, which filed the petition. statement. CCIA members are Facebook, Twitter and Google.

But Texas AG claims that, because of their vast reach, social media giants are quasi-government entities that manage a common space, much like “common operator” telephone networks. They should therefore be required to allow all views on their platforms without censorship.

Do companies really have rights to the First Amendment?

The short answer is yes. But what is considered speech? And to what extent are these protections maintained when the rights of individual citizens are balanced? These are some of the issues that the courts are currently grappling with.

Social media companies claim that their content moderation and the algorithms used to rank posts are a form of expression protected from government interference under the U.S. Constitution. States argue that the platforms themselves are so large and powerful that they interfere with the rights of individuals to freedom of speech. The courts will have to decide where to draw the line in balancing these rights.

Which Supreme Court judges voted for and against the stalemate?

Chief Justice John Roberts, along with Judges Stephen Breyer, Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett approved the stay. But the majority did not give a written opinion on the case, so it is not clear on what basis they made this decision.

Judge Samuel Alito wrote a disagreement joined by Judges Clarence Thomas and Neil Gorsuch. Judge Elena Kagan also disagreed, but did not join Alit’s disagreement or explain her reasoning.

Sounds like this was a clear victory for technology companies. Why would there be concern for these companies in the future?

There are several reasons why social media companies should be concerned. First, the three Conservatives in the majority – Roberts, Kavanagh and Coney-Barrett – offered no justification for their decision to support the stay. Experts suggest that this could mean that judges could favor hearing the merits of a constitutional complaint if the case continues to go through a federal appeal process.

Another cause for concern is that three Conservative judges who objected did offer their reasoning and seemed to agree with the Texas Attorney General’s argument that the law is limited to companies with “50 million active users in the United States” only applies to those entities which possess a certain measure of normal market power, such as the holder, and which this power gives them ‘the possibility to exclude [disfavored] speakers.”

A third cause for concern is that, in the absence of a written opinion of the majority, the Court did not send a clear signal to States to stop their efforts to regulate speech on private platforms. This could encourage more states to move forward with legislation to regulate speech on social media.

“We wouldn’t be surprised if other states do, because the feeling behind techlash continues to drive political action,” New Street Research analyst Blair Levin said in a note to investors.

Do other states have similar laws?

Florida has a similar social media law (SB 7072). This law is also being challenged in the federal court as unconstitutional. Last week, the 11th U.S. District Court of Appeals upheld a delay in preventing the law from taking effect as the merits of the case are discussed and decided. Similar drafts have also been introduced in the GOP-controlled legislatures of Michigan and Georgia.

Experts say other states are likely to consider a similar law.

“Given this signal, we doubt that other states will pass laws similar to Texas, which would keep this in the headlines,” wrote Paul Gallant, an analyst at Cowen Washington Research Group, in a note to investors. “And given the dissatisfaction of conservatives with Apple / Google’s deplatformation Talk in early 2021, we would not be surprised to see app stores included in some state laws. “

Apple and Google removed the conservative social media service in January 2021 from their app stores for allowing incendiary posts about the Capitol Hill uprising. The service was eventually allowed in both app stores, but conservative lawmakers pointed to the removal as evidence that large technology companies have anti-conservative bias despite the lack of evidence behind the allegations.

Read more: Parler is back online after a months-long absence: Here’s what you need to know

What is the next step for this case?

The fifth round will now hear the full challenge of the Texas law by internet companies. A decision could be made in the fourth quarter, Gallant said. That court has already signaled that it is leaning towards the affirmation of Texas law.

But many experts say that with the case of Florida breaking through the 11th district and the Texas law in the fifth district, there is a great chance that this question of whether these laws violate the rights from the first amendment of social media companies will end up in the US Supreme Court.