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Supreme Court must intervene to defend social media platforms’ editorial rights

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Can the government dictate how social media platforms moderate their content, forcing them to host speech they otherwise wouldn’t? The answer to this question, which the U.S. Supreme Court strongly indicated on Jan. 23 would soon be heard in a few cases involving Florida and Texas laws, should be no.

That’s because the bylaws violate the platforms’ First Amendment freedom of speech. NetChoice, an association that represents Meta (Facebook), Twitter and Google, among others, is challenging both measures.

On Jan. 23, the Supreme Court invited U.S. Solicitor General Elizabeth Barchas Prelogar to file a briefing containing the Biden administration’s views on the matter. The request sends a strong signal that the Supreme Court is likely to hear these views. And if so, the verdict will be weighty.

In the hands of the judges will be the ability of the platforms to determine and manage for themselves – as corporate entities, free from government censorship – the content they host, where they host it and, ultimately, the types of communities they sustain . For example, Facebook prohibits hate speech and “particularly violent and graphic” content when defining its community standards.

Moody v. NetChoice concerns a Florida law that prohibits major social media platforms from permanently deleting or suspending (for more than 14 days) the accounts of candidates for state or local office in the Sunshine State. This deplatform provision applies regardless of whether candidates violate a platform’s acceptable speech policy once or repeatedly. Thus, candidates can continually post hate speech and violent content on Facebook and never be jettisoned.

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Passed in 2021, the Florida law will only regulate platforms with at least 100 million monthly users or $100 million in annual gross revenue. It leaves smaller platforms unfettered, discriminating against larger ones by forcing them to address candidates who flout their community standards. The statute also prohibits major platforms from prioritizing or posting less prominent posts by or about candidates using their services.

NetChoice v. Paxton revolves around a Texas statute that prohibits social media platforms with more than 50 million monthly users from “a user, a user’s expression, or a user’s ability to receive another person’s expression based on . .. the point of view of the user or another person.”

The proponents of the laws praise them as protecting users from censorship by platforms and their algorithms. They view the measures as advancing users’ rights to speak, with some Republicans believing platforms are unfairly censoring right-wing positions. As Florida Republican Governor Ron DeSantis said of his state’s law, “If Big Tech censors inconsistently enforce the rules to discriminate in favor of dominant Silicon Valley ideology, they will now be held accountable.”

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These complaints ignore a fundamental principle: The First Amendment only protects citizens from government censorship, not decisions made by private entities such as social media platforms. The Supreme Court made it clear in 1997 that rules affecting speech on the Internet should be subject to the same rigorous First Amendment scrutiny as rules affecting speech in print. So when Florida and Texas paternalistically dictate what content platforms should host and how they manage it (where and in what order it should appear), constitutional red flags are being waved as the platforms’ First Amendment rights are being violated.

In particular, the editorial autonomy of platforms to make their own decisions about the kind of speech they allow is being destroyed. By telling platforms to carry messages they deem objectionable, Florida and Texas are violating the platforms’ editorial control and their First Amendment right not to speak. Just as the First Amendment protects individuals and entities from government restrictions on their speech, the Supreme Court has concluded that it sometimes protects them from being forced by the government to deliver messages.

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The 1974 Supreme Court opinion in Miami Herald Publishing Co. v. Tornillo dominates the cases today, which concluded that a newspaper could not be compelled to print the answer of a candidate for public office whose record and character had attacked the newspaper. In striking down Florida’s right of reply, the Supreme Court reasoned that “the choice of material to appear in a newspaper…”

Social media platforms are not traditional newspapers. But like newspapers, they are media entities that publish and distribute speech. Platforms also speak for themselves in establishing and publishing standards about unacceptable content. The Supreme Court must hear both cases and not allow Florida and Texas to violate these First Amendment-protected prerogatives.

Clay Calvert, JD, Ph.D. is a professor emeritus at the University of Florida (UF). He held joint appointments as a professor of law in the Fredric G. Levin College of Law and a Brechner Eminent Scholar in Mass Communication in the College of Journalism and Communications. Specializing in First Amendment and media law, Calvert has published more than 150 articles in legal journals on issues affecting free speech, and is lead author of “Mass Media Act(22nd ed. 2023, McGraw Hill).