Emory Undergraduate Journal of Law & Society

On September 29th, 2023, the Supreme Court agreed to rule on the legitimacy of internet censorship laws recently instituted in Florida and Texas [1]. The case is more interesting than one might initially think. While contemporary American politics have grown to be notoriously tribalistic, as conservatives advocate for conservative policy and liberals advocate for liberal policy without much nuance, internet censorship is unique; both the political left and right have advocated for and against it in recent years, so whether one’s for or against specific kinds of internet censorship requires slightly more thought than ‘what party do you typically identify with.’ 1997’s Reno v. ACLU, for example, has historically been championed as a victory for the social left against censorship. The ruling abolished the federal Communications Decency Act (CDA), a law that prohibited engaging in “indecent” or “patently offensive” online discourse if said discourse could possibly be viewed by a minor [2]. The Supreme Court deemed the law, which was originally passed a year earlier in 1996, unconstitutional because what could be determined to define speech as “indecent” or “patently offensive” is incredibly vague, thus granting the enforcers of the CDA the power to violate the First amendment. The case didn’t inspire much division in the court; the final decision was 7-2 and the two dissenting judges, William Rehnquist and Sandra Day O’Connor, partially concurred [2]. America’s social left celebrated this decision as a victory, as the CDA was often enforced to censor content that related to “sexual or excretory activities or organs” [3]. This meant that the CDA criminalized digital speech about safe sex practices, rape culture, abortion, and sexuality – all of which more prominently feature in left wing discourse.

The cases that the court will deliberate over in 2024 represent a reversal of the political pendulum; instead of assessing the constitutionality of a conservative law expanding censorship, as in 1997, the court will rule on conservative laws designed to reduce censorship. Both laws disputed in the case exist to restrict social media companies, like X and Instagram, from monitoring what content can and can’t be published on their platforms. The Florida law, which was signed by governor Ron DeSantis in 2021, would make it punishable by fine to suspend/remove the accounts of political figures either holding or running for office, and it would require major social media companies to publicly announce the algorithms and methodologies that go into things like ‘shadowbanning,’ which is when the content of certain users is made less likely to be promoted on the ‘explore’ pages of various platforms based on the content they post, and banning users altogether [4]. The Texas law stands by the same principles as its Floridian counterpart, but it also bans platforms with over 50 million monthly users from removing a user’s account for expressing a “viewpoint” [5]. Left wing critics of the law have identified danger in the vagueness in how one can differentiate a simple “viewpoint” from hate speech and grotesque depictions of violence, arguing that companies intending to monitor hateful content would be left vulnerable to being sued. Right wing supporters, however, argue that the laws prevent Big Tech from asserting unjust influence over the political and social climate of America. Many point to January 2021, when Donald Trump was banned from social media companies like Twitter and Facebook for allegedly playing a role in January 6th’s insurrection [5]. Defenders of the ban assert that Trump violated the rules of these pages by calling for the violence that occurred in the insurrection, while the opposition points to the dangers of a billion dollar company censoring a prominent political figure.

The various applications of the First amendment are essential to this debate. For the Floridian and Texan laws, the justification for their legislature in relation to the first amendment is clear: by banning users for publishing certain content, social media companies are violating people’s first amendment rights through censorship and asserting unjust control over free speech. Under this argument, social media is the modern equivalent of the public square, where people gather to exchange ideas and converse. Considering that a small number of corporations own a large portion of the ‘digital real estate’ where these conversations occur, for Big Tech to monitor what can and can’t be said within their respective public squares could be seen as equivalent to a city government banning certain expression on any publicly owned land. For social media companies arguing against these laws, the defense lies in the extent to which the First amendment can be applied to corporations. Groups like NetChoice and the Computer and Communications Industry Association (CCIA), who represent Facebook, X, Youtube, and other tech companies, will likely argue that wholly depicting social media websites as public squares is simplistic and incorrect. These companies also exist as publishers; while the vast majority of content is uploaded by users whose official affiliation with these companies begins and ends at account creation, to post on X is still to associate the content of said post with X itself, as the social media platform plays an essential role in publishing. Within this vein of thought, Florida and Texas’ laws would violate the first amendments rights of social media companies. While the First amendment famously protects the right to speech, it also protects the right to filtered silence; to enforce these censorship laws would be to strip tech companies of the ability to filter what is and isn’t published under their name. NetChoice and the CCIA have argued how these laws effectively put social media companies between a rock and a hard place [1]. Removing content deemed as hateful and gruesome would leave companies open to legal punishment, but not removing this content creates the potential for advertiser and consumer boycotts. Additionally, companies could be held liable for hateful comments published on their platforms. Regardless of what unfolds around this specific case, social media censorship will likely continue to dominate American political and social discourse thanks to the transformative and revolutionary effect of social media on news and speech. Whether precedent already exists surrounding free speech that can be applied to social media is a question that the court will tackle in 2024 and beyond, and the results have the potential to define American political discourse in the modern age.

References

[1] Hurley, Lawrence. “Supreme Court to Weigh GOP-backed Social Media ‘Censorship’ Laws.” NBC News. Last modified September 29, 2023. Accessed October 30, 2023. https://www.nbcnews.com/politics/supreme-court/supreme-court-weigh-republican-backe d-social-media-censorship-laws-rcna66522. 

[2] ACLU. “ACLU Hails Supreme Court Victory in Internet Censorship Challenge.” News release. June 27, 1997. Accessed October 30, 2023. https://www.aclu.org/press-releases/aclu-hails-supreme-court-victory-internet-censorship challenge. 

[3] RENO v. American Civil Liberties Union, No. 96–511 (June 26, 1997). Accessed October 30, 2023. https://supreme.justia.com/cases/federal/us/521/844/case.pdf. 

[4] CBS News Miami. “Florida Gov. Ron DeSantis Signs Bill to Stop Big Tech Censorship.” CBS News. Last modified 2021 24, 2021. Accessed October 3, 2023. https://www.cbsnews.com/miami/news/florida-governor-ron-desantis-bill-stop-big-tech-c ensorship/. 

[5] Vidales, Jesus. “Texas Social Media ‘Censorship’ Law Goes into Effect after Federal Court Lifts Block.” Texas Tribune. Last modified September 16, 2022. Accessed October 30, 2023. https://www.texastribune.org/2022/09/16/texas-social-media-law/#:~:text=The%20law% 20passed%20during%20a,content%20removal%20and%20account%20suspensions.