In the wake of two contradictory lower court rulings on taking down controversial content from online platforms by social media or ‘Big Tech’ companies, the US Supreme Court is set to hear a challenge to the Florida and Texas state laws.
The state laws, namely ‘Senate Bill 7072’ and ‘HB2020’, are similar to the extent that they prevent and penalise the takedown of ‘political content’ and free speech by social media companies, even going so far as to allow political candidates to sue such platforms for removal or blockage of their accounts. What do the existing US laws say on this issue? How did this case arrive at the Supreme Court? What are the possible concerns surrounding this?
Currently, social media platforms in the US enjoy legal protection under Section 230 of the Communications Decency Act, a 1996 law that immunises online platforms from incurring liability with respect to content posted by their users. However, in February, SCOTUS will hear two cases that could impact content moderation on online platforms and the applicability of Section 230 in a big way.
The first is ‘Gonzalez vs Google’, a case filed by the relatives of an American man who lost his life to pro-ISIS factions. It argued that pro-ISIS recommendations generated by Youtube’s algorithm can be considered as its own form of content, produced by the platform. Thus, this case will clarify whether the immunity under Section 230 will extend to algorithms.
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Another related case that the Court will hear in February is ‘Twitter vs. Taamneh’, which will clarify whether social media companies can be legally sued for aiding and abetting acts of terrorism for hosting certain kinds of content.
Besides this, the First Amendment says that Congress shall make no law that restricts the freedom of speech or the press. In recent years, there has been a rise in courts citing this provision to protect social media companies from liability, as witnessed by the 2019 ruling given by the Ninth in ‘Dyroff vs. Ultimate Software’, where the protection under Section 230 was extended to targeted recommendations.
Similarly, in Force vs. Facebook (2019), the US Court of Appeals held that Section 230 protects social media companies from terrorism claims, in a case where victims of Hamas terrorist attacks in Israel demanded Facebook be held liable for hosting objectionable content.
Both the US Court of Appeals for the Fifth Circuit and the US Court of Appeals for the Eleventh Circuit also cited the First Amendment while giving contradictory decisions in the cases challenging the Texas and Florida content-moderation laws.
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How did this case arrive at the Supreme Court?
On September 16, 2022, the US Court of Appeals for the Fifth Circuit upheld the Texas law titled ‘HB2020’ that prevents social media companies from blocking, banning, or censoring users, based on the speakers’ ‘viewpoint’.
This essentially meant that companies could not take down hate speech, no matter how offensive it might be. In its decision, the Court cited the First Amendment and held, “That Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.”
However, when Florida knocked on the doors of the US Court of Appeals for the Eleventh Circuit, seeking a reversal of the lower court’s decision against the ‘Senate Bill 7072’ or the social media regulation laws, it did not meet any luck. Instead, the Court held that the law which allowed tech companies to be sued and fined for removing accounts or views of political candidates was ‘unconstitutional’.
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“We hold that it is substantially likely that social-media companies—even the biggest ones—are ‘private actors’ whose rights the First Amendment protects,” the Court said while striking down the Florida law.
In light of these contradictory rulings on content moderation by online platforms, all eyes are now on the US Supreme Court to decide whether social media companies have a right to regulate or censor some content on their platforms or whether free speech, in all its forms, will reign supreme.
What are the possible concerns surrounding this?
Unlike India, where lawmakers have considerable say in deciding what content stays on the internet and what doesn’t, the US has primarily followed a ‘freewheeling’ approach when it comes to the regulation of speech on online platforms, meaning that it does not intervene or meddle with the internet much. However, this case has a strong possibility of changing that.
In a 1997 ruling against censorship on the internet titled ‘Reno vs ACLU’, the Supreme Court held that the principle of ‘free speech’ as enshrined in the First Amendment must be extended to content on the internet. The ruling called the internet “the most participatory form of mass speech yet developed,” and held the same to be entitled to “the highest protection from governmental intrusion”.
‘Reno vs ACLU’ also deemed the Communications Decency Act (1996) an unconstitutional restriction on free speech. Yet, currently, most social media companies seek immunity under Section 230 of the same Act. Many of these discrepancies and contrasting legal precedents will be put to test before the Supreme Court if it does take up the challenge to social media laws.
Source: MSN