A federal appeals court in Texas has issued a ruling that allows Texas residents to sue Facebook, Twitter, YouTube, and other giant social media networks for censoring content based on opinions or points of view. The logic is that such companies aren’t websites but “internet providers,” and that if Facebook, Twitter, and Youtube can censor, there’s no reason phone companies cannot disconnect telephone calls if they hear speech they don’t like. (As “common carriers”, telephone companies don’t discriminate or restrict access based on the content of calls. Internet providers like Facebook were briefly designated common carriers as well, until the FCC killed net neutrality in 2017.)
Herein lies the problem. As I explained last year, social media companies are being treated legally like neutral platforms, or carriers, while being allowed to function as editorial sites:
“Facebook, Twitter, and Youtube have been treated legally as neutral platforms (like a phone line) — so they’re not responsible for what people say and post — while being allowed to function as editorial sites — so they can step in to edit or remove what people say on their platforms, or kick them off. That’s having their cake and eating it. If they want the prerogative to censor and deplatform as private corporations, then fine, I support that, but they should be stripped of their legal immunities. They shouldn’t be able to have it both ways.”
I still believe this. Holding big-tech companies accountable would force them into the role of a neutral, non-censoring platform. (For obviously they would never give up their legal immunities: they’d be inundated with lawsuits and go bankrupt within a week.) Problem solved — and without messing with the First Amendment, or trying to incorporate it in the private sphere, as the above article speculates may be on the horizon…
What would the Supreme Court say?
The article concludes that
“It’s possible the dispute won’t be resolved unless and until it ends up before the US Supreme Court. What would happen at that point is impossible to say, but as CNN notes, the apparent willingness to overturn Roe v Wade suggests that some aspects of the First Amendment, particularly with regard to online platforms, could be open to reinterpretation as well, with potentially far-reaching consequences.”
I’m not so sure about that. It was the conservative justices who upheld the right of private corporations to suspend contributors using public access channels in Manhattan Community Access Corp. v. Halleck (6/17/19). Kavanagh wrote the opinion (joined by Roberts, Thomas, Alito, and Gorsuch). It was the four liberals, rather (Sotomayor, Ginsburg, Breyer, and Kagan) who dissented, arguing that the private corporation “stepped into the city’s shoes” and thus qualified as a state actor, subject to the First Amendment.
In other words, if there is any SCOTUS precedent for treating private companies as being subject to the First Amendment, it was set by the liberal minority, not the conservative majority. The Texas lawsuit is different from the Manhattan case, to be sure, but the point is that the conservatives were quite clear in that decision that the First Amendment applies only to the governmental abridgment of speech. If the current case reaches the Supreme Court, we’ll see how firmly they hold to that position, and if the liberals do any backpedaling themselves.
I agree with you. If Facebook and other social media platforms are going to be given protections like the phone companies, they should be barred from censoring posts. This would include their little factchecks, which are used to make people question posts when the fact check doesn’t even dispute the post in question, or the fact check itself is bad. The only exception would be if a post was creating a public safety concern, like someone calling other to incite violence.
Yes, and inciting to violence is a crime anyway. Same with child pornography, copyright violation, etc. Basically anything illegal is excluded.