States take on social media giants
Social media platforms have increasingly become a hotbed of political discourse – with views ranging from the furthest left to the alt-right – leaving companies to sort through what constitutes a violation of their terms of service.
The events of January 6, 2021 and the subsequent platform bans imposed on former President Donald Trump for his role – real or perceived – have reinvigorated legislative debate largely centered on two types of bills: anti- -censorship and those who 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 the same direction, raising the question: should the government legislate the use of social media? Or do these laws cross boundaries and interfere with free speech?
The answer is not so simple.
THE BIRTH OF SOCIAL MEDIA AND THE LAWS THAT FOLLOWED
In 1997, the first The social media platform — sixdegrees.com — was launched, allowing users to upload photos, send messages and post items on the bulletin board. From there, other platforms like Myspace, Facebook, Twitter and many more quickly followed, connecting millions of people around the world with just the click of a mouse or the touch of a finger. .
As these platforms grew, privacy and censorship issues began to emerge, prompting legislation to try to navigate these areas.
One such policy is Section 230 of the Communications Decency Act. In 1996, the legislation was signed into law by Congress, but was pushed back after the American Civil Liberties Union and the American Library Association challenged its constitutionality.
The Supreme Court struck down part of the law for trying to criminalize the transmission of “obscene or indecent” material online to persons under the age of 18. The court ruled that this would infringe on freedom of speech, making it unconstitutional.
However, Section 230, a separate part of the law, remained. Today, it protects intermediaries from laws that could hold them legally responsible for what users of the platform say and do online, thereby protecting social media companies.
CAN FREEDOM OF EXPRESSION BE LIMITED ONLINE? IF SO, HOW?
With respect to government, the First Amendment states that Congress cannot pass laws restricting free speech.
However, when it comes to social media companies, they can set their own editorial rules and regulations as they are private entities, allowing them to take certain actions with respect to user posts if they violate the guidelines of the business.
Vera Eidelman, an attorney for the ACLU Speech, Privacy and Technology Project, expanded on the topic, saying, “Since I’ve been trending, the types of bills that get flagged require social media content, views from political figures and media to focus on transparency.
“Florida and Texas have recently passed such laws, but both are challenged by a number of amicus advocacy briefs written by the Journalists Committee on Freedom of the Press,” Eidelman said. Government technology.
In the case of Florida, Senate Bill 7072 seeks to impose fines and sanctions on 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, leading a judge to block the bill for violating Section 230. The governor’s office is 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 another person’s expression based on the viewpoint of the user or another person”.
As in Florida, the law was legally challenged by NetChoice and the Computer and Communications Industry Association for violating the First Amendment, leading the state to appeal the lawsuit.
WHAT HAPPENS AFTER?
“We’re waiting for lawsuits challenging Florida and Texas laws to see what happens next,” said David Greene, director of civil liberties and senior counsel for the Electronic Frontier Foundation. “In each case, the trial courts found the laws violated the First Amendment and suspended them.”
Each state’s calls will be influential, Greene said. If they are reversed, it could slow the momentum of other states, but if either or both are upheld, there could be a flurry of these kinds of laws.
In the meantime, other types of legislation can be offered as an alternative to limit the power and reach of social media.
“I hope states will look more at market dominance legislation,” Greene said. “It can be regulated by our constitutional systems and is different from the regulation of speech.”
When it comes to social media platforms, Greene said, people want platforms to do a better job of being more predictable; users should lobby their services to make their content moderation policies more understandable.