In the aftermath of the January 6 attack on the US Capitol, both Facebook and Twitter decided to suspend lame-duck President Donald Trump from their platforms. He had encouraged violence, the sites reasoned; the megaphone was removed, albeit temporarily. For many Americans horrified by the attack, the decisions were a relief. But for some conservatives, it marked an escalation in a different kind of attack: it was, to them, a clear sign of Big Tech’s anti-conservative bias.
That same year, Florida and Texas passed bills to limit social media platforms’ ability to remove certain types of content. (Each is detailed in this congressional briefing .) In particular, they intend to make political “deplatforming” illegal, a move that would have ostensibly prevented the removal of Trump from Facebook and Twitter. The constitutionality of these laws has since been challenged in lawsuits—the tech platforms argue that they have a First Amendment right to moderate content posted by their users. As the separate cases wound their way through the court system, federal judges (all of whom were nominated by Republican presidents) were split on the laws’ legality. And now they go to the Supreme Court.
On Friday, the court announced it would add those cases to its docket. The resulting decisions could be profound: “This would be — I think this is without exaggeration — the most important Supreme Court case ever on the Internet,” Alan Rozenshtein, a law professor at the University of Minnesota and a senior editor at Lawfare, told me . At stake are tricky questions about how to apply the First Amendment in an age of giant, powerful social media platforms. Right now, these platforms have the right to moderate the posts that appear on them; for example, they can ban someone for hate speech at their discretion. Limiting their ability to pull posts down would cause, as Rozenshtein put it, “a mess.” The decisions could reshape online expression as we currently know it.
Whether or not these particular laws are struck down isn’t what’s actually important here, Rozenshtein argues. “What’s much, much more important is what the court says when it strikes down these laws — how the court describes the protections of the First Amendment.” Whatever they decide will set legal precedents for how we think about free speech when so much of our lives take place on the web. Rozenshtein and I spoke on the phone to discuss why these cases are so interesting—and why the decision may not come down to a purely political one.
Our conversation has been condensed and edited for clarity.
Caroline Mimbs Nyce: How did we get here?
Alan Rosenstein: If you ask the corporations and digital civil society, we came here because the crazy MAGA Republicans need something to do with their days, and they have no real policy proposals. So they’re just engaging in culture war politics, and they’ve latched onto Silicon Valley’s social media companies as the latest boogeyman. If you ask conservatives, they’ll say, “Big Tech is running amok. Liberals have been warning us about unchecked corporate power for years, and maybe they had a point.” This really came to a head when, in the wake of the January 6 attack on the Capitol, major social media platforms kicked Donald Trump, the President of the United States, off their platforms.
Nice: Based on what we know about the court, do we have any theories about how they will rule?
Rosenstein: I think it is very likely that the Texas law will be struck down. It is very broad and almost impossible to implement. But I think there will be some votes to uphold the Florida law. There may be voices from the conservatives, especially Justices Samuel Alito and Clarence Thomas, but you may also get some support from some people on the left, especially Justices Ketanji Brown Jackson and Sonia Sotomayor—not because they think conservatives are being discriminated against, but because they themselves have a lot of skepticism about private power and big business.
But what is actually important is not whether these laws are repealed or not. What is much, much more important is what the Court says when it strikes down these laws—how the Court describes the protections of the First Amendment.
Nice: What are the important things for Americans to think about right now?
Rosenstein: This would be – I think this is no exaggeration – the most important Supreme Court case ever regarding the Internet.
In 1997, the Supreme Court issued a very famous case called Reno v. ACLU. And this was a constitutional case about what was called the Communications Decency Act. This was a law that purported to impose criminal penalties on internet companies and platforms that transmitted indecent content to minors. So this is part of the great internet porn horror of the mid-90s. The court said this violates the First Amendment because to comply with this law, platforms will have to censor massive, massive, massive amounts of information. And that’s really bad. And Reno v. ACLU has always been considered the Magna Carta of sorts in Internet–First Amendment cases, because it recognized that the First Amendment is really fundamental and really important. The Court has recognized this in various forms since then. But in the intervening nearly 30 years, never has a case dealing with First Amendment issues on the Internet been taken so, so deeply.
Even if the court strikes down these laws, unless it also provides very strong language about how platforms can be moderated—that the platforms’ moderation decisions are almost inherently beyond the reach of government regulation under the First Amendment—this will not be the end of this. Whether it’s Texas or Florida or some blue state that has its own concerns about content moderation for progressive causes, we will continue to see laws like this.
This is just the beginning of a new phase in American history where it is rightly recognized that because these platforms are so important, they should be subject to government regulation. Over the next decade, we will deal with all sorts of court challenges. And I think that’s as it should be. This is the age of Big Tech. This is not the end of the conversation about the First Amendment, the Internet, and government regulation across major platforms. It’s actually the beginning of the conversation.
Nice: This could really affect how Americans experience social media.
Rosenstein: Oh, it absolutely could, in very unpredictable ways. If you believe the state governments, they are fighting for internet freedom, for the freedom of users to be able to use these platforms, even if users express unfriendly or unfashionable views. But if you listen to the platforms and most of the tech politics and digital civil society, they’re the ones fighting for internet freedom, because they believe that companies have a First Amendment right to decide what’s on the platforms, and that the platforms only work for that companies aggressively moderate.
Even if the conservative states argue in good faith, this can backfire disastrously. Because if you limit what companies can do to take down harmful or toxic content, you’re not going to get a freer environment. You will end up with a mess.
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