Despite what the European Union’s boosters may wish, Big Tech is still overwhelmingly headquartered in the US. American rulings on the rights and wrongs of free speech on social media inevitably therefore have a global impact.
The US Supreme Court this week is hearing arguments in two cases about whether States can regulate the content moderation of social media platforms over concerns tech companies suppress conservative viewpoints. Experts say the court’s decision could have wide-ranging implications on the future of online public discourse.
“What the Supreme Court does here could have impacts that reach far beyond the US. The platforms provide their users with global audiences, not just local or domestic ones. Thus, changes that Florida or Texas make to the user base or the content available in those states could affect online public discourse in Europe,” Scott Wilkens, a senior counsel at the Knight First Amendment Institute, told Brussels Signal.
The case is rooted in the decision of social media platforms such as Facebook and X, formerly Twitter, to remove then-president Donald Trump from their respective sites following the January 6 attack on the US Capitol.
The social media giants kicked Trump off their platforms in 2021 for violating company policies that prohibit incitement to violence. Lawmakers in the Republican-led States of Florida and Texas pushed back and passed laws that prevent platforms from removing users based on their political views.
“Freedom of speech is under attack in Texas,” said Texas Republican Governor Greg Abbott at the signing of the bill.
“There is a dangerous movement by some social media companies to silence conservative ideas and values. This is wrong and we will not allow it in Texas.”
Despite numerous anecdotal claims from Republicans and conservatives around the country that social media companies have censored conservative voices, studies have not been able to verify those claims. A New York University study appeared to find the opposite, showing that they enjoy a prominent placement on the most popular social media platforms.
The lawsuits, which were filed by internet trade groups, argue that Texas and Florida are violating the First Amendment rights of social media companies to exercise editorial judgement when it comes to moderating user content. It’s a right that has long been granted to traditional media outlets such as newspapers.
The Southern US States claim that social media platforms do not have any First Amendment protections and that governments can force sites to carry content the platforms find hateful or objectionable. Should the Supreme Court justices’ side with the Florida and Texas laws, it would be virtually impossible for platforms to police “hate speech” or other types of harmful content, said Wilkins.
Lower courts have been split on where exactly social media platforms fall on this spectrum. After the first day of oral arguments, judges seemed to be conflicted about the issue.
While most of the justices appeared to be sceptical about the Texas and Florida laws, others were just as critical of the tech companies’ approach to moderating content.
“It’s your message when you want to escape state regulation. But it’s not your message when you want to escape liability,” said conservative justice Samuel Alito, summarising the companies’ arguments and referring to Section 230, which provides immunity to social media platforms from user-generated content.
Because of that diversity of opinions on the nine-member bench and the potentially far-reaching impact of this conclusion, justices may deliver a very narrow decision that could result in more litigation, Wilkins said.
“If the Florida and Texas laws were upheld, the platforms would be prohibited from taking down all kinds of content that they take down now and that I don’t think anybody really wants to see, for example, content that promotes suicide or promotes eating disorders and hate speech, all kinds of really awful, objectionable content that they wouldn’t be able to remove it,” he said.
The justices also asked about the transparency aspect when it comes to how social media companies moderate their user content. Both the Texas and Florida laws require platforms to notify a user once their content has been removed and explain the reasoning.
That is similar to a requirement that social media companies already have to comply with in Europe as part of the EU’s Digital Services Act.
Trump, who filed a brief with the court, claimed that social media companies are akin to airlines or telephone companies, which must “offer their services to one and all on a take-it-or-leave-it basis without any bespoke modification”.
No matter the outcome in this case, the issue of defining public discourse on the internet will probably lead to additional litigation. Wilkins said the court’s current 6-3 conservative majority was no indication of whether the justices would uphold the Florida and Texas laws.
“The Supreme Court has a conservative majority, it’s true, but it’s not at all clear that these cases will be decided along political lines, and so it’s hard to predict the eventual outcome,” he said.
