The Supreme Court of the United States ruled this Thursday a transcendental sentence The reasoning supports the freedom of social networks to set their own content moderation policies, ban or expel users and delete messages. Even so, the Supreme Court’s decision is not final, but refers to lower courts for the analysis and application of its doctrine. The rulings represent an apparent success for platforms such as Facebook, Instagram, X, TikTok and YouTube and a defeat for Texas and Florida, whose laws to limit these moderation policies were in question. These states, under Republican control, wanted to limit the decisions of these networks because they considered that they contributed to silencing conservative voices, such as those defending the electoral hoax that Donald Trump had the election stolen from him or those publishing misinformation about vaccines.
The two sides, the states and the platforms, are embroiled in the dispute over the banner of freedom of expression enshrined in the First Amendment of the Constitution against state interference. Texas and Florida considered that vetoing messages and users violates it; the platforms, represented by industry associations, claimed that it was these laws that violated it by preventing them from choosing what to publish on their platforms. For the states, social networks are more like telephones — communications cannot be interfered with —; for the platforms, they are more like newspapers, with their editorial policy.
The Supreme Court agrees with the networks on the basis of its ruling. “Like the publishers, cable operators and pageant organizers this Court has previously considered, major social media platforms curate their content by combining ‘diverse voices’ to create a distinctive expressive offering,” The Texas ruling says, The Texas law unanimously ruled in the direction of the ruling, albeit with different arguments. “Their decisions about what messages are appropriate give the feed a particular expressive quality and ‘constitute the exercise’ of a protected ‘editorial control.’ And the Texas law addresses those expressive choices by forcing the platforms to present and promote content on their platforms.” feeds “which they find objectionable,” the ruling added, with progressive Justice Elena Kagan as rapporteur.
The ruling stresses that “a state cannot interfere with the speech of private actors in order to promote its own vision of ideological balance.” “Of course, states (and their citizens) are right to want an expressive arena in which the public has access to a wide range of opinions. That is, in fact, a fundamental goal of the First Amendment. But the way the First Amendment achieves that goal is by preventing the government from ‘swaying public debate in a preferred direction,’” it adds.
The law, however, affects cases other than social networks and their need to justify the deletion of content. The magistrates blame the lower courts for not having done a complete analysis and send the case back to them. There are some areas where the law could survive, but the content moderation doctrine seems clear.
That doctrine has extraordinary importance for the future of social networks. Preventing content moderation policies could have caused misinformation and hate speech to spread without the possibility of stopping it other than when a law was violated. During the oral hearing, the judges already seemed to be mostly inclined to support the right of the platforms to moderate their content.
The laws (which are similar in content but have their own nuances) were challenged in federal courts, with contradictory results: one ruling struck down the Florida law, while another upheld the Texas law, so it seemed clear that the Supreme Court would agree to unify the doctrine on the matter. The High Court judges already provisionally suspended the application of the Texas law last year, in a decision taken by 5 votes to 4. The Supreme Court has a majority of six conservative judges against three progressives.
The Supreme Court and the networks
The judges had already decided to uphold the exemption of technology companies from liability for content published by their users in a ruling issued last year. In this ruling, they had also ruled on other disputes related to social networks. First, they resolved a relatively minor issue: the right of public officials to block other users on social networks. In March, they issued two rulings in which they unanimously concluded that a public official can block his followers if he makes personal use of the account, but not if he exercises his authority over it.
Last week, they settled another case in which Republican-led states faced off against the Biden administration over how far the administration can go to combat controversial social media posts on topics such as Covid or election cleanliness. A federal appeals court sided with the states, finding that administration officials unconstitutionally coerced platforms to limit conservative viewpoints. However, the Supreme Court ruled that the Biden administration did not violate freedom of expression when it urged, from different instances, the removal of misinformation messages related to Covid or vaccines.
Of course, the Government cannot impose its own content moderation policy on social networks or force the removal of one message or another, but the authorities did not find that they did anything similar to that with their warning messages about disinformation.
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