The United States Supreme Court has, for the time being, stopped Texas (and Florida) from enforcing their recently passed state laws prohibiting social media platforms such as Twitter, Facebook, Instagram, TikTok, YouTube, and others, from moderating or refusing to run content they deem to be in violation of their well-established rules of use.
Three conservative Supreme Court Justices, including two appointed by former President Trump (Amy Coney Barrett and Brett Kavanaugh) and Chief Justice John Roberts, joined Justices Stephen Breyer and Sonia Sotomayor in the majority. For the time being, they have stopped the enforcement of state laws in Texas and Florida that would, in effect, force social-media companies to run content that they determined violate their rules of use. Implementation of the Texas and Florida laws will remain frozen until the Supreme Court hands down a final ruling, probably by the end of the month or early July.
Free speech in America means one is free to speak or publish and, of course, free to refrain from speaking or publishing. There is no prior legal restraint on publishing a point-of-view in America, just as there is no legal requirement that a point-of-view be published either. Rules a social media company establishes for what can and cannot be published must, of course, be evenly and fairly applied.
The Texas law, and a similar Florida law that I discussed in last week’s column, would treat social media platforms as common carriers like airlines, trains, and buses that cannot discriminate against who or what they carry. The social media companies contend they are much more like publishers with editorial responsibility and discretion than common carriers. While social media platforms are a relatively new phenomenon, they are certainly more akin to publications than they are to buses, trains, or airplanes.
Some political purveyors of information believe they are entitled to unfettered access to any and all social media sites. In effect, they demand that big technology platforms like Facebook and Twitter run whatever they post and be restrained from removing posts they find to violate their rules of use, such as postings that are untruthful, crude, or incitant to violence. Facebook and Twitter have rules against inciting violence on their platforms. Facebook, which looked the other way time and time again during the Trump presidency, pulled the plug on him after January 6th, finding that its platform had been used “to incite violent insurrection against a democratically elected government.”
While many cry censorship, editorial judgment has nothing to do with censorship, at least not in the sense that our Constitution safeguards against our government prohibiting or restricting (censoring) the freedom of our press to publish whatever it chooses to publish.
Because social media platforms are private entities with established rules for users, they can prohibit or deplatform users who violate those rules. While there is always a danger that these private companies might enforce their rules selectively, no one until now has suggested that these private companies are not entitled to establish standards or rules that users are expected to respect.
Similarly, since the beginning of the republic, most newspapers and magazines in America have published letters to the editors, which allow readers to opine on and criticize almost anything. The editors of these publications reserve the right to publish these letters or not to publish them if they find them inconsistent with their standards. That’s not censorship either; that’s simply responsible judgment.
So, what drives these red states to pass legislation requiring social media companies to run whatever is offered up by politicians and their political campaigns? None of these major social media platforms will play politics by refusing to run or, in the jargon of the age, deplatform one political Party’s campaign compared to another Party’s campaign as long as neither Party violates the platform’s rules of use.
Deplatforming isn’t new. It has, since 2018, been invoked by social-media platforms as a last resort, generally following breathtaking abuse by irresponsible actors like Alex Jones and his obscene InfoWars campaigns. The reader might recall that Jones called the Sandy Hook elementary school shooting massacre that took the lives of 20 children a hoax, and he reveled in the Pizzagate nonsense alleging that a child sex abuse ring connected to high-ranking democrats was operating in the basement of a popular pizzeria in Washington, D.C. It would have been laughable, except that it resulted in gunfire at the restaurant.
That’s when social media platforms began taking real responsibility for policing content to which they gave voice. Apple kicked Jones and his affiliated podcasts from iTunes, and soon Facebook, YouTube, Spotify, Mailchimp, Stitcher, and Pinterest showed him the door. Few, if any, in the political class complained. In fact, they mostly nodded approvingly. Good riddance, they thought.
But then something they never thought could happen happened. Another obscenity, this one political, erupted on January 6th, 2021. Most participants in the political class were shaken by the events of that day. They watched, just like everyone else, the attack on the Capitol and our democracy. They saw what we all saw. The seditious exhortations at Washington’s ellipse just south of the White House were led by an outgoing President (who was determined not to be outgoing). The carnage that followed shocked the nation and the rest of the world.
Twitter was the first to deplatform the former President for inciting the day of horrors. Almost immediately after that, Facebook, Instagram, and YouTube said enough is enough and deplatformed him as well. Suddenly, social media platforms, exercising their right to deplatform anyone who traffics in dangerous content in violation of their rules of use, had deplatformed the leader of a political party, indeed, an outgoing President of the United States who was simply determined not to be an outgoing President.
Few, if any, Republicans or Democrats had previously voiced concern with the deplatforming of notorious agitators like Alex Jones, whose outrages picked at the wounds of the people, especially those who have been traumatized by the severe misfortunes that fate so frequently visits upon so many, so often. But now, responsible social media platforms had deplatformed, for grievous just cause, the very public personality at the very center of America’s body politic.
And so, those of the political Party he still leads and controls have taken note, especially those who still curry his favor or are determined to avoid his disfavor. Their reaction has been to try to eliminate the use of deplatforming as a responsible mechanism for reducing, if not eliminating, the abuses to which some politicians might stoop.
Some politicians want to eliminate the ability of social media platforms to deplatform abusers. I’ll wager that our very conservative Supreme Court will not allow politicians to take that safeguard away.