Facebook, Twitter, and YouTube dodged a Texas bullet this week when the Supreme Court handed down a brief order that blocked a new Texas law. This new legislation would have seized control of the entire content moderation process of these major media sites.
The requirements of this law, including disclosure requirements, would have been so hard to accomplish that it may have been impossible to comply with. It was a threat to the entire social media industry.
According to the legislation passed in Texas, Facebook would have been required to publish a written explanation of each decision to remove content. The social media giant removes billions of pieces of content from its website each year.
Critics of the Texas law say that it would have prevented major social media sites from even doing the most basic of content moderation. Examples of this were suppressing posts by Nazis who call for mass genocide or banning people who are stalking and harassing former lovers.
The case before the Supreme Court was Netchoice v. Paxton, it was a 5-4 vote. The law would forbid major social media sites from banning a user, regulating, or restricting any content. It also would ban altering the algorithms that bring content to the surface. Experts say that it would have made content moderation impossible.
Greg Abbott, the Republican governor of Texas, signed the law and said that he did it to thwart a “dangerous movement by social media companies to silence conservative viewpoints and ideas.” Conservatives like former President Donald Trump were banned from Facebook and Twitter after he allegedly encouraged the January 6 attack on the U.S. Capitol.
The Supreme Court did not have to explain its ruling since it was just temporarily blocking a law. The High Court will most likely have to give a definitive ruling at a future time. But this ruling will probably stand again. It is fairly well established that the First Amendment does allow the government to force a media company to publish content that they do not want to publish. That goes for anyone.
In the 2019 Manhattan Community Access Corp. v. Halleck decision, the Court decided again that “when a private entity provides a forum for speech,” it may “exercise editorial discretion over the speech and speakers in the forum.”
This is not just an issue that has been criticized by the right. The idea that media sites have First Amendment rights was criticized by the left after the Supreme Court’s campaign finance decision rendered in Citizens United v. FEC in 2010. They ruled that corporations have free speech protections and can assert those rights in court.
Some were surprised that liberal Judge Kagan who was appointed by former President Barack Obama dissented from the ruling to suspend the Texas law. She joined conservative justices Thomas, Alito, and Gorsuch in the dissenting vote.
If the Texas law prevails, it would place social media companies at the whim of 50 states and it could mean 50 content moderation plans. What would these sites do if a California law contradicts Texas law?
This problem is on hold, but not averted. The question of the First Amendment and whether it permits the government to regulate social media moderation remains an open issue.
Two federal appeals courts have already reached contradictory rulings on the legality of the Texas law, so that means the Supreme Court does not have a long time in limbo.
The clock is ticking and Facebook, Twitter, and YouTube are facing a dangerous decision for their platforms.