With the potential to “transform speech on the Internet as we know it,” the Supreme Court prepared to hear multiple cases on social media and the First Amendment.
After ruling 6-3 staying an injunction from the lower court meant to prohibit President Joe Biden’s administration from colluding with Big Tech to censor and suppress content on platforms, the high court will be presented no fewer than three contests of note during the current term.
In addition to that anticipated case originating in the suit of Missouri v. Biden, granted cert Friday, just prior to the commencement of the new term the Supreme Court agreed to make it would rule on legal challenges brought against laws passed in Florida and Texas aimed at restricting platforms from censoring and suppressing otherwise legal content from users.
Writing for The Hill, Mark Weinstein, the founder of MeWe who parted ways with the Facebook alternative in July 2022, weighed in on the separate cases deeming them to have “contradictory” rulings from the lower courts.
Regarding the Florida case pitting Attorney General Ashley Moody against the tech trade association NetChoice in Moody v. NetChoice, LLC, the court was presented with the questions “Whether the First Amendment prohibits a State from requiring that social-media companies host third-party communications, and from regulating the time, place, and manner in which they do so,” as well as, “Whether the First Amendment prohibits a State from requiring social-media companies to notify and provide an explanation to their users when they censor the user’s speech.”
The 11th Circuit Court of Appeals determined in a May 2022 ruling that “no one has a vested right to force a platform to all [a citizen] to contribute to or consume social media content,” while the 5th Circuit ruled otherwise in upholding Texas’ law.
“If the Supreme Court sides with the 5th Circuit, thereby forcing social media sites to publish or not publish certain types of speech,” wrote Weinstein, “in effect the government will ironically be trampling on the First Amendment rights of social media companies.”
NetChoice had argued after the 5th Circuit ruling, “no judicial opinion in our Nation’s history had held that the First Amendment permits government to compel websites to publish and disseminate speech against their will. If allowed to stand, the Fifth Circuit’s opinion will upend settled First Amendment jurisprudence and threaten to transform speech on the Internet as we know it today.”
In response, Texas Attorney General Ken Paxton contended “A small number of modern communications platforms effectively control access to the modern, digital public square…” claiming “an absolute First Amendment right to exclude…anyone they want for any reason they want without explanation.”
While Weinstein warned against the “troubling precedent” should the government be permitted to make moderation decisions such as “forcing social platforms to promote the government’s position in international conflicts or to advocate for or against the validity of elections results or the effectiveness of vaccines, depending on the party in power,” he also reminded about a central issue at hand — Section 230.
In brief, Section 230, a part of the 1996 Communications Decency Act, established that a platform should not be treated the same as a publisher with regard to liability of content.
Weinstein questioned the 5th Circuit’s interpretation of the same in NetChoice, LLC v. Paxton contending it “contradicted the purpose and protections” of Section 230 and went on to state, “It gives sites broad leeway to moderate at their discretion without liability for content posted by their users. This protects startups and small- and medium-sized companies without massive funds or armies of lawyers from being bankrupted by content liability lawsuits.”
Ultimately, as he called for renewed protections of Section 230, removal of social media monopoly powers, and other protective measures to level the playing field, the tech entrepreneur suggested “Instead of dictating content moderation policies for private companies, the Supreme Court can uphold the First Amendment rights of private enterprises, and lawmakers can focus on strengthening free market fundamentals and fair competition online, while supporting authentic civil discourse by minimizing anonymous bots and trolls.”