In my last post, I explained the inconsistencies in social media censorship across different platforms. I want to continue the theme of my blog by getting more technical; in this post, I’m going to dive into the policies that have been proposed to regulate social media censorship and how those policies have been challenged in court.
More and more cases that pertain to online censorship are being heard by the Supreme Court. One precedent for social-media-related litigation is Reno v ACLU, a case decided in 1997 that protected online freedom of expression. Reno v ACLU ruled that the removal of “online speech that is “indecent” or “patently offensive”” violated the First Amendment. In other words, the case says that free speech should be protected, whether it occurs online or in person.
However, the Supreme Court has historically defended “editorial control and judgment,” a philosophy that does not always align with the precedent of free expression set in Reno v ACLU. The editorial control and judgment clause is a part of the First Amendment that allows private press companies to portray an opinion on their platforms. Basically, it means that companies like newspapers and news sites can use their platform to take a side, in the same way an individual can use his voice to take a side. For example, the New York Times primarily publishes left-leaning articles, and Fox News publishes right-leaning media. Even though those are pretty biased news sources, the right of editorial control permits the companies to present polarized and one-sided information as a means of expressing their opinions.
There is an ongoing debate surrounding how “editorial control” applies to social media. Are online platforms exercising “editorial control” when they censor and remove content, or are they taking away other Americans’ freedom of expression and violating the precedent of Reno v ACLU?
Both Texas and Florida attempted to pass legislation protecting speech on social media and preventing censorship, and both laws were challenged in federal courts.
The Texas legislature passed a law called H.B. 20 that “prohibits social media platforms from “censor[ing]” users or content based on viewpoint…” The law, if it remains in effect, only allows social media sites’ to remove posts that incite unlawful or discriminatory violence, requires sites to provide reasons for removing content, and mandates the creation of online spaces where people can appeal illicit or biased content removal.
However, a federal trial court instituted a preliminary injunction against the law, stating that it violated the press’s right to “editorial control.” The injunction meant that the law could not take effect. The case that set the injunction, NetChoice v Paxton, was appealed and heard in the Fifth Circuit Court of Appeals. The Fifth Circuit overruled the injunction, meaning the law can be enforced by the state of Texas. It is likely that the case will be appealed again and heard in the Supreme Court.
The Fifth Circuit Court of Appeals ruled in favor of freedom of speech. They argued that social media sites are not protected under “editorial control,” because they do not decide what content to display based on their desire to express an opinion, but rather through the use of algorithms and artificial intelligence. Since users may see different content based on their past behavior or post interaction, the court argued that there is no consistent opinion being expressed on a social media platform (when the site is evaluated as a whole).
The Texas ruling is a step in protecting the freedom of speech on social media, but a different court of appeals issued a conflicting verdict on a similar law in Florida.
The state legislature of Florida passed Senate Bill 7072. The new law would limit “a platform’s ability to engage in deplatforming, censorship, shadow-banning, or post prioritization” and require that moderation is applied consistently to all types of content. It would also prevent any restriction on content of political candidates or “journalistic enterprises.”
In Florida, as in Texas, social media regulation ended up in court. The federal trial court in Florida placed a preliminary injunction on Senate Bill 7072 in NetChoice v Moody. However, unlike the Fifth Circuit, the Eleventh Circuit court of appeals upheld the injunction on Senate Bill 7072 and did not allow the regulatory law to go into effect.
The Eleventh Circuit ruled that social media sites did have the right to remove content. They stated that the “editorial judgment” clause means that sites can choose what information to display as part of their right to express an opinion. Social media sites are privately owned, and thus, according to the court, the First Amendment protects their rights to remove content that does not align with the opinion they wish to express. The Eleventh Circuit did allow some portions of Senate Bill 7072 to go into effect, such as the clause that required sites to disclose their reasons for censoring content, under the idea that regulations would prevent people from being misled about the platforms they use. The main difference in the rulings between the Fifth and Eleventh Circuits was that the Eleventh Circuit ruled that removing posts is part of editorial control and judgment while the Fifth ruled that editorial control is merely choosing what to publish.
The conflicting rulings of federal courts show the issues emerging with modern media. Legally, how do we handle social media censorship? How do we create regulations to protect the people without overstepping private companies and capitalistic ideals?
Additionally, in my opinion, it is problematic that there are inconsistent regulations across the nation. How can Florida regulate the internet one way, but Texas regulate it another way, when the same platforms exist in both states?
Modern technology has brought more questions than ever before, and we must rely on fundamental American ideals to answer them and preserve democracy. How do we restrict speech to keep people safe, while still ensuring everyone has a right to express his opinion? How do those regulations apply in the broad space of the internet? What will the government’s role be in regulation, or in the lack thereof? What role will private companies play?
There is something to be said about the power of words. In the wrong hands, words can be dangerous for the nation and its people. In the right hands, they can be used to deliberate and solve social issues that have been plaguing the United States for generations. We must decide, as a nation, how we want to define our values of freedom and equality before we try to pass more litigation on social media censorship. Otherwise, we will remain trapped among conflicting court rulings and inconsistent regulatory policies.
https://www.washingtonpost.com/technology/2022/10/09/social-media-content-moderation/
https://www.aclu.org/other/legislation-and-court-cases-pertaining-online-censorship-several-stateshttps://
www.aclu.org/cases/reno-v-aclu-challenge-censorship-provisions-communications-decency-act
https://crsreports.congress.gov/product/pdf/LSB/LSB10748#:~:text=NetChoice%20v.,Paxton&text=On%20December%201%2C%202021%2C%20a,social%20media%20platforms%20discussed%20above.
Great post, Mara. This, along with your first post, was very well written. Your post was very informative, easy to follow, and contained a sense of professionalism. You incorporated lots of important information and evidence in a way that didn’t feel overpowering. As for this topic, I think it’s very interesting and important to know about. Social media speech and the First Amendment are two things that have got a lot of attention over the last few years. I love that you included information about Reno vs. ACLU, because I wasn’t very knowledgable about that case or its ruling.
From the further research that I’m doing, it seems that social media moderation is becoming somewhat of a polarized issue. Florida governor Ron DeSantis and Texas governor Greg Abbott claim that social media moderation is needed “to mute conservative viewpoints”. They believe that the social media sites that regulate posts are taking away from the First Amendment’s free speech claim.
I agree that it is a problem that different parts of the country have different laws and regulations about how social media moderation works. If the same social media site is used in multiple states, how can there be different rules about how it is regulated. Social media posts spread far beyond state lines, which makes it difficult to even consider having inconsistent laws across states. I believe that a decision has to be reached by the Supreme Court that will be used throughout all states.
Lastly, I want to touch on your point about the “power of words”. I think you make a very insightful point about words being in different people’s hands. Although some people can use words in negative ways, it is also necessary that people can conduct productive conversations. I think there has to be a balance between what people are allowed to post on social media and what needs to be regulated. Obviously violence and untruthful information can be regulated. However, I don’t think people should be punished for sharing their point of view. That goes back to “the power of words” in the sense that if people can have respectful conversations regarding their beliefs, then that shouldn’t be moderated. Although, if it gets to a point where false information is being spewed, I think social media sites should have the right to remove certain posts for their platforms.
This is a sticky situation, and is far from having a clear answer. I think there has to be a balance between what is permitted and what is allowed to be moderated while keeping the First Amendment in mind.
https://www.bloomberg.com/news/articles/2023-01-23/supreme-court-seeks-us-views-on-texas-florida-social-media-laws
https://www.theverge.com/2023/1/23/23567834/supreme-court-texas-florida-netchoice-lawsuit-order-us-government-brief
Your blog was extremely well written and the visuals helped outline your topic well. I also really enjoyed how both your topics on each post connect. This blog topic was good because it applies to our society and is a growing issue we must face. Censorship has always been a big topic, one that comes with many stakes. Whether we choose to regulate social media or we choose to leave it alone, the outcomes have multiple factors.
Social media is turning into a news source for many people, and oftentimes these news sources aren’t regulated heavily by the government due to the First Amendment. However, social media is algorithms, not news stories and reports. It would make sense to apply regulation to algorithms and censorship of social media because, unlike other journalism sources, it isn’t limiting the amount of what gets published. By allowing social media regulation, companies have to have a clear reason why a user shouldn’t be allowed to post. Meaning that blaming community guidelines for removing users would no longer be allowed.
This may seem like a good idea because it makes sure that people can be heard on social media platforms. It is easier to be heard online than in person because of the number of people that social media allows you to reach. Yet, should the government be allowed to regulate private businesses? Social media is new territory, but if the government can regulate those companies it opens the metaphorical floodgates of other regulations. Protecting citizens and their natural and civil rights is important. Social media brings in a new line of questioning for the First Amendment.
As the year continues, Congress legislators are debating adding more restrictions on social media control. For example, it is already a law that no government device is allowed to download TikTok or have it installed. Compared to the rest of the world the United States is behind on social media regulation, which is what pushes government officials to act on regulation. However, this is difficult due to the idea of government regulation in people’s minds. Congress has tried to pass aggressive bills, but they have failed to get through. Another important question in mind is should regulation laws for social media by the federal or state. It doesn’t seem logical for different states to have different laws surrounding the same app. Yet, it is also hard for federal laws to get passed.
I enjoyed reading your blog and the difficult questions it asked. Media in modern society is a tough subject with a lot of factors. You covered a lot of good information in a good writing style.
Source: https://www.cnbc.com/2023/01/01/more-social-media-regulation-is-coming-in-2023-members-of-congress-say.html
Another super impressive post! Diving into the actual concept of legality and interpretation of First Amendment rights was really insightful but also brought light to a topic you touched on: polarization of media. Like you stated, editorial control bends the perspective on media to the lenses of their watchers. News stories are covered differently, opinions are cherry picked from only a certain panel of experts, and each side makes an enemy of the other. These all contribute to the internal conflict of our country: partisanship.
Marquette University conducted a “quantitative study [which asked] students…how much they pay attention to various news sources, to what extent they trust those news sources, and their views on individual issues as they relate to their chosen political identity.” Obviously, there was a clear correlation between consumed media and political party. In his publication of “Effects of News Media Consumption on Political Partisanship, Identity, and Issue Stance,” author Dalton Bouzek emphasizes the suddenly popular that citizens are turning to for information: digital media. Bouzek cites the decreasing viewership of both major and local networks across the nation. 93% of Americans consume media from an online platform, shockingly less than average viewership of television news networks.
Online, there are around 35 websites that generate, at the least, 10 million views per month. This complete shift of the way society gets their media has contributed greatly to the increasing of political divide. When social media platforms allow users to actually comment, share, and respond to information and opinion, it completely redefines news. The shift from television to mobile phone has caused a complete change in involvement with news through dialogue. Dialogue is a key component to the concept of a public sphere, a closed environment, not just the comment section of a video, where one can freely discuss and identify problems in society and have impact on political change. This completely differs from the concept of a public screen, which is the one-sided relationship between news media and target audience where there is corporate ownership of the platform, entertainment-based stories, and a need to communicate in images.
I assert that while social media does indeed create political divide, it also allows for groups of people with similar opinions find people who agree with them and create a public sphere. The ability to create an online, anonymous profile and utilize the concept of free speech to express political opinion has created a shameless online population who are less likely to conform to cognitive dissonance and fall into the cascade of becoming a hidden profile in society. In other words, people are unafraid to say what they mean; an idea which could potentially be catastrophic.
This ties into your topic of media censorship, and the role corporations play in censoring potentially malignant topics. Interpreting American law into this completely newfound method of media has been a huge issue. As a means of social expression, I agree with you that we, as a nation, have a role to play in defining what is acceptable in terms of media as opposed to legislation since the concept of media is more of a social value than a governmental one. Here I propose a solution which seems to be developing itself more and more every day: cancel culture.
An ever-evolving social phenomenon, cancel culture refers to the means of expressive disapproval and exerting social pressure onto a certain target. This social practice is intended to hold people accountable for certain expressed opinion, usually in the case of social media. To an extreme, cancel culture can even cause the ostracization of users by removing them from social media platforms entirely. When online users post something offensive, they are now subject to actually be held accountable for their comments, putting unforeseen power in society to induce actual consequence for societally-deemed misconduct.
Used most often in a negative connotation, there are many adverse opinions about the democratic party and its manipulation of cancel culture to discriminate against the diametrically opposed. Advocates against cancel culture argue for free speech and against censorship, once again inciting the use of American law to defend their argument. This ties back into your questions of how to restrict speech and how to do so without government interference. I believe that through time and change, cancel culture will fail to dissipate and further itself into society despite the clear negative connotation it has. Because cancel culture is not something that concerns legality but rather public opinion, it truly functions as a societal decision about topics. People holding people accountable by not consuming content, blocking users, and ostracizing them is no violation of First Amendment rights, however, when introducing corporate control over platforms, cancel culture evolved into a cause of banning users from sites. This is where true censorship occurs; not with the public opinion, but with the involvement of corporations.
If society can hold each other accountable through cancel culture, then the work is done for us. Users will conform to an unspoken societal law of what is appropriate based on nothing more than public opinion. Ostracizing is a powerful tool used all throughout history to shun inappropriate opinions and invoking this strategy in social media is a necessity. Through cancel culture, society, which is more present online than in actual news media, can express negative reactions to certain users’ opinions granted through their First Amendment rights. This, completely without the influence of media platforms, is a legal way to influence societal opinion and is necessary to not censor users, but rather make them think before they post.
Peter Dizikes | MIT News Office. (n.d.). How shared partisanship leads to social media connections. MIT News | Massachusetts Institute of Technology. Retrieved February 23, 2023, from https://news.mit.edu/2021/partisanship-social-media-echo-chambers-0211
Bouzek, D. (n.d.). Effects of news media consumption on political partisanship, identity … Retrieved February 24, 2023, from https://epublications.marquette.edu/cgi/viewcontent.cgi?
article=1562&context=theses_open
MediLexicon International. (n.d.). Cognitive dissonance: Definition, effects, and examples. Medical News Today. Retrieved February 23, 2023, from https://www.medicalnewstoday.com/articles/326738