The events of Jan. 6, 2021, and the subsequent platform bans placed on former President Donald Trump for his role — real or perceived — reinvigorated legislative debate largely centered on two types of bills: anti-censorship bills and those that would draw hard lines around the responsibilities of social media companies to moderate their online communities.
So far, only two states have passed legislation focused on social media censorship. However, other states are moving in a similar direction, raising the question: Should government legislate how social media is used? Or do these laws cross the line and interfere with freedom of speech?
The answer is not so straightforward.
THE BIRTH OF SOCIAL MEDIA AND THE LAWS THAT FOLLOWED
In 1997, the first social media platform — sixdegrees.com — was launched, allowing users to upload pictures, send messages and post bulletin board items. From there, other platforms like Myspace, Facebook, Twitter and more soon followed, connecting millions of people worldwide at the click of a mouse or tap of a finger.
As these platforms grew, issues around privacy and censorship started to emerge, prompting legislation to try and navigate these areas.
One of those policies is Section 230 of the Communications Decency Act. In 1996, the legislation was enacted by Congress but faced pushback after the American Civil Liberties Union and the American Library Association challenged its constitutionality.
The Supreme Court struck down one portion of the act for attempting to criminalize the transmission of “obscene or indecent” materials online to individuals under 18. The court decided this would infringe on free speech, making it unconstitutional.
However, Section 230, a separate portion of the act, remained. Today, it protects intermediaries from laws that could hold them legally responsible for what platform users say and do online, protecting the likes of social media companies.
CAN FREE SPEECH BE RESTRICTED ONLINE? IF SO, HOW?
When it comes to the government, the First Amendment states that Congress cannot make laws restricting free speech.
However, when it comes to social media companies, they can set their own editorial rules and regulations because they are private entities, allowing them to take certain actions towards users’ posts if they breach company guidelines.
Vera Eidelman, a staff attorney with the ACLU Speech, Privacy and Technology Project, expanded on the topic, saying, “Since I’ve been following the trend, the types of bills that are flagged require social media content, viewpoints of political figures and media outlets to focus on transparency.”
“Florida and Texas recently passed these types of laws, but both are being challenged by a number of advocacy amicus briefs drafted by the Reporters Committee for Freedom of the Press,” Eidelman told Government Technology.
In Florida’s case, Senate Bill 7072 looks to levy fines and impose penalties against social media platforms that block or inhibit content from political candidates and media organizations.
NetChoice and the Computer and Communications Industry Association sued the state, resulting in a judge blocking the bill because it violated Section 230. The governor’s office is in the process of appealing the decision.
As for Texas, House Bill 20 states that “a social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on the viewpoint of the user or another person.”
Like Florida, the law was legally challenged by NetChoice and the Computer and Communications Industry Association for violating the First Amendment, resulting in the state appealing the suit.
WHAT COMES NEXT?
“We are waiting for the lawsuits challenging the Florida and Texas laws to see what happens next,” David Greene, the civil liberties director and senior staff attorney at the Electronic Frontier Foundation, said. “In each case, trial courts found that the laws did violate the First Amendment and put them on hold.”
Each state’s appeals will be influential, Greene said. If they are struck down, it could slow down the momentum of other states, but if one or both of them are upheld, there could be a wave of these types of laws.
In the meantime, other types of legislation can be proposed as an alternative to curb social media’s power and reach.
“I would hope states look more into legislation that has to do with market dominance,” Greene said. “That can be regulated under our constitutional systems and is different from regulating speech.”
As for social media platforms, Greene said, people want platforms to do a better job at being more predictable; users need to put pressure on their services to make their content moderation policies more understandable.
