Social media companies need to answer for the harm caused directly by their actions or inaction. But clumsily crafted content moderation policies designed by state legislators are not the answer to the problem.
Last month, the Supreme Court heard arguments on whether Texas and Florida can impose their own rules regarding promoting posts and deplatforming users on large social media platforms such as Facebook, Google, TikTok and X.
Several Supreme Court justices expressed skepticism that the two states’ laws could pass constitutional scrutiny. The argument centers on whether social media platforms have an independent First Amendment right to moderate content on their sites.
Florida and Texas describe the platforms as mere conduits, or common carriers, for their users’ messages. As common carriers, the states argue, their decisions to advance, downgrade or purge posts and deplatform users are unconstitutionally discriminatory.
The platforms, for their part, maintain that their content moderation policies are no different from editorial decisions made by newspapers.
Newspapers’ decisions about which items to print, which to ignore, which to highlight and which to place less prominently have long enjoyed First Amendment protection. Social media platforms argue that, like newspapers, their decisions to promote, depress or remove posts should be constitutionally shielded from government interference.
The platforms should prevail even if, as with newspapers, their editorial decisions might indeed discriminate against certain viewpoints. Neither newspapers nor social media platforms are governmental entities, so neither is bound by First Amendment principles. While the government is constitutionally forbidden from discriminating against viewpoints, non-governmental corporations are not.
The solution for users whose opinions are muzzled is to repost on platforms that support or at least tolerate their views. True, speakers might not receive the exposure they crave, but the First Amendment was never designed to ensure all voices are heard at equal volume. The First Amendment only guarantees, in most circumstances, a government-free space to speak.
The power of social media is undeniable. At least half of U.S. adults get their news from social media. It is also beyond dispute that the platforms are polluted with misinformation and disinformation. Neither the right nor the left is satisfied with digital discourse, and that kind of bipartisan agreement is impressive. However, replacing content moderation policies developed by the platforms with policies crafted by politicians will not fix anything. Instead, the focus should be on algorithms.
Algorithms amplify posts based on engagement. They are often designed to promote the most sensational posts, regardless of whether they are based on truth or lies.
Regulations targeted at algorithms, as suggested by former Facebook executive Frances Haugen in her congressional testimony, are more finely designed tools to manage content on platforms.
And importantly, social media algorithms are the by-products of business decisions. As such, they would not fall under claims of First Amendment speech protections.
A rollback of the platforms’ immunity under Section 230 of the Communications Decency Act could also help sanitize the most contaminated social media spaces. But Congress, not individual states, has the authority to do that. Section 230 provides that only the author, not the platform, can be held responsible for harm caused as a direct result of a post.
The Florida and Texas laws would remove Section 230(c)(2) immunity in their states and impose government-designed content moderation policies. The states’ overreach violates not only the First Amendment rights of the platforms but also the Supremacy Clause of the Constitution. Only Congress, which provided the platforms with immunity in the first place, has the power to modify the protections, if at all.
The legislators and governors of Texas and Florida have made it clear that they are angered by the editorial decisions made by major social media platforms. They believe conservative voices are being quieted. Even if that is true, the First Amendment bars those states from compelling private, non-governmental actors to host speech they choose not to.
Although conservative speakers and their legislative champions might be frustrated, they are not being silenced. Authors and content creators may exercise their First Amendment right to speak, free from government interference, on any of the other sites that welcome and promote their points of view.
Lynn Greenky is a professor emeritus at Syracuse University, where she taught a course about the First Amendment for 10 years. She continues to write and speak about the First Amendment and is the author of “When Freedom Speaks.“