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The Supreme Court vs. social media


The Supreme Court building in Washington on May 12, 2022.

By Shira Ovide


The Supreme Court handed social media companies a win earlier this week by blocking, for now, a Texas law that would have banned large apps including Facebook and Twitter from weeding out messages based on the views they expressed.


But the issue may return to the court, and at least three justices seem open to considering a question that could fundamentally change social media as we know it: Do sites like Facebook have a First Amendment right to allow some material and not others, or an obligation to distribute almost anything?


The justices’ interest shows that we are all still figuring out how to deal with a handful of social media companies having enormous influence over public conversation. Few people are happy about this reality, but it is not clear what to do about it.


Let me lay out how we got here:


What the First Amendment says


The First Amendment restricts government censorship, but it does not apply to decisions made by businesses.


You may not agree with the internet companies’ choices, but First Amendment scholars have said that Facebook had a constitutional right to suspend the account of Donald Trump. Twitter can decree that people are not permitted to spam their followers with marketing pitches. The government has not intervened in those choices.


Enter Texas. And Florida.


Conservative politicians have long complained that Facebook, Twitter, YouTube and other social media companies unfairly remove or demote some conservative viewpoints. I have not seen credible research that supports this view, but many people believe it.


In response to this, a Texas law signed last year, House Bill 20, prohibited large social media companies from censoring people based on the “viewpoint of the user or another person.”


Associations of internet companies and some constitutional rights groups said that the Texas law violated the First Amendment because it allowed the state to tell private businesses what kinds of speech they could or could not distribute.


The internet companies went a step further and said social media apps had the same broad First Amendment protections against government interference into “editorial judgment” that apply to news organizations.


Texas countered that Facebook, Twitter and the like do not have such First Amendment protections because they are more like old telegraphs, telephone companies and home internet providers. More government interference is permitted for such “common carriers” because people cannot be blocked from using essential tools of communication.


A majority of justices said Tuesday that the Texas law could not go into effect while an appeal was winding its way through the court system. They did not decide on either side’s interpretation of how the First Amendment should apply to 21st-century social media.


What happens next


A federal appeals court recently deemed unconstitutional a Florida law passed last year that similarly tried to restrict social media companies’ discretion over speech. The Supreme Court may eventually take up either the Texas or Florida law and make a ruling on its constitutional merits.


On Tuesday and in past comments, three justices have expressed an openness to considering how the First Amendment should or should not apply to social media.


In a case last year, Justice Clarence Thomas brought up the idea of social media having similar responsibilities as common carriers not to restrict speech. And Tuesday, Thomas and Justice Neil Gorsuch signed onto a dissenting opinion written by Justice Samuel Alito that said, “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.” Alito also wrote that he had “not formed a definitive view on the novel legal questions” brought up by the Texas social media law.


These cases force us to wrestle with a fundamental question about what kind of world we want to live in: Are Facebook, Twitter and YouTube so influential in our world that the government should restrain their decisions, or are they private companies that should have the freedom to set their own rules?

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