June 4, 2022

Texas, Fla. GOP Say “No” to Content Moderation. But Supremes Say, “Not So Fast!”

by Hal Gershowitz

Comments Below

 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.

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7 responses to “Texas, Fla. GOP Say “No” to Content Moderation. But Supremes Say, “Not So Fast!””

  1. Carol Katzman says:

    We really enjoy Hal’s objective presentation.

  2. Rick Gordon says:

    As much as I dislike censorship … other than the traditional ‘fire in a crowd’ …. I agree that these private firms should be able to ‘police’ their platform content as submitted by those using their tools. We should not allow such communications to be used to incite hate or active destruction of our nation.

  3. Mike says:

    Hal:

    A couple of key points that you failed to address.

    First, is the impact of how the social media companies have used Section 230 to mask their liberal bias. For those who are not familiar with this:

    “Section 230 says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230).”

    There are people like me who believe that the rules are not applied uniformly. Deplatforming Alex Jones is a “no brainer” but when you allow an Ayatollah calling for the destruction of Israel, or a Putin who is spewing falsehoods to justify his horrific invasion of the Ukraine to remain on your platform while getting rid of people Dennis Prager, or of course, Donald Trump, you can’t help but wonder: Are the scales tilted?

    Second, who holds the social media accountable for these obvious instances of being biased? The most obvious case was censoring the NY Post stories and reporting about the Hunter Biden Laptop thirty days before the election. You had 51 “military and political leaders” and trust me I use that term loosely, beclown themselves proclaiming it was an attempt by Russia to influence the election.

    Now we know, the NY Post story was true. And even the vaunted NYT had to recognize this several months later. And if the tables were turned and there was a person with the last name of Trump with the same set of facts that are the reality of the Hunter Biden case, the media and social media platforms would be covering it non stop.

    We also know that with Mark Zuckerberg (Facebook) spending millions of dollars on ballot harvesting initiatives, and Google and Twitter doing things to suppress searches or deplatform, the social media companies were united in doing what they could to elect Biden. They were not neutral.

    You may not have a problem with that, but the legislation from Florida and Texas were passed to try and level the playing field. Personally, I am not sure that was the right thing to do. After all, the reason I read the WSJ is because of the confirmation bias process, a.k.a. I agree with much of what they write. But the problem here is that the MSM doesn’t view the WSJ as the sole arbiter of truth. Unfortunately, as witnessed by the disgraceful performance of people like Reps. Nadler, Schiff and Swalwell, and others, they use the proclamations on the social media platforms to justify their disgraceful actions.

    So, in closing, let me ask, how many liberal politicians or folks calling for the destruction of countries (e.g. Israel and the Ukraine) have been deplatformed. I await your response.

  4. Hal Gershowitz says:

    Response to Mike: I have no idea how many liberal politicians calling for the destruction of Israel or Ukraine, or, for that matter, how many conservative politicians calling for support of Israel or Ukraine have been deplatfored. I suspect few if any. However, Mike makes a perfectly legitimate point that most media, including the leading social media platforms, stayed away from the Hunter Biden laptop story that broke in the New York Post 20 days before the 2020 election. Some media outlets may have avoided the story simply because they were committed to Biden’s candidacy. Others, simply because they were determined not to give voice to an “October Surprise” that legitimate media, in general, always anticipate and generally avoid in the days before an election. However, as the U.S. 11th Circuit Court of Appeals, and the U.S. Supreme Court temporary injunctions suggest, the remedy for social media failing to run certain stories, cannot be laws requiring social media to run all stories.

  5. Bill Giers says:

    Those claiming to be media should be licensed and standards and ethics set. If found to be lying or biased, they should be fined and / or license suspended like any other professional license. Otherwise lies and bias will be promoted, and no one will know what a fact is or what truth is.

  6. Looking forward to this! A new point of view refreshing!

  7. Ron Trotta says:

    As the SOTUS went back in time to justify it’s ROE decision recently. So should they go back in time to look at the rights and responsibility of the social media giants. Not to long ago Newspapers and magazines would never consider allowing or publishing anything like we saw these last years . At least as it relates to content that was once considered Propaganda . Public company gate keepers of the social media must also be allowed the right to maintain the social norms consistent with civilized humans. I guess as in medical decisions all content should be screened on the top tier to , “Do no Harm”, ” Must be factually true”, and finally is the information is necessary by well established ideals of debate.

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