Gov’t Interference in Big Tech Content Moderation Needs a Legal Challenge

The issue of government intervention in regulating content moderation on Big Tech platforms has reached a critical juncture with two cases before the Supreme Court—Moody v. NetChoice and NetChoice v. Paxton. These cases, with significant First Amendment implications, raise fundamental questions about the balance between free speech and the regulation of online discourse.

NetChoice, representing the tech industry, is challenging laws enacted in Texas and Florida aimed at preventing social media platforms from allegedly silencing conservative voices, according to recently published editorial in the Wall Street Journal.

The Florida law, for instance, imposes restrictions on large social media platforms, prohibiting them from removing the accounts of political candidates or suppressing posts related to them. Similarly, the Texas law aims to prevent platforms from making editorial decisions based on the viewpoint of users’ expressions, albeit with unclear definitions that could lead to unintended consequences.

Critics argue that these laws impinge upon First Amendment speech rights by curbing the editorial discretion of platforms. NetChoice contends that the Court’s precedent, as seen in the case of 303 Creative LLC, supports the argument that compelling platforms to adhere to certain content moderation standards violates their freedom of expression.

While social media platforms such as Instagram and YouTube may not be traditional publishers, they exercise editorial judgment in deciding what content to remove, suppress, or amplify. This discretion extends to curating user feeds and making recommendations, illustrating the complex nature of their role in shaping online discourse.

On the other hand, proponents of the laws argue that they merely regulate business conduct rather than expression. They invoke the common-carrier legal doctrine to justify their position, suggesting that platforms opening themselves to the public should not discriminate against users based on their viewpoints.

However, the invocation of the common-carrier doctrine overlooks the nuanced nature of content moderation and the potential chilling effect of government interference on free speech. Imposing stringent regulations and penalties on platforms could stifle innovation and hinder the free exchange of ideas online.

The attempt to equate social media platforms with common carriers like telephone companies or electric utilities is fundamentally flawed and poses a significant threat to free speech online. While regulated industries like transportation or utilities do not engage in editorial or expressive activity, social media platforms inherently involve content moderation and editorial decisions.

Florida and Texas, in their bid to extend common-carrier regulation to social media platforms, implicitly acknowledge the expressive nature of these platforms by accusing them of discriminating against certain types of speech. However, this inconsistency reveals the inherent contradiction in their argument—it is impossible to simultaneously treat social media platforms as common carriers while acknowledging their role in shaping online discourse.

The underlying concern is that subjecting social media platforms to common-carrier regulation would open the door to increased government control over speech. Are we comfortable with government agencies like the Federal Trade Commission dictating what can and cannot be said online?

While proponents of common-carrier regulation cite the Pruneyard precedent, which extended free speech protections to malls open to the public, this analogy falls short. Malls typically do not engage in activities protected by the First Amendment, and the decision did not adequately address the property rights of business owners.

A more relevant precedent is Miami Herald Publishing Co. v. Tornillo, which struck down a Florida law compelling newspapers to offer equal space to political candidates to respond to critical editorials. The Court recognized that such laws compel and chill speech, as editors may opt to avoid controversy altogether.

In navigating this contentious issue, the Supreme Court must carefully consider the broader implications of its decision. Balancing the need to protect free speech with concerns about online safety and misinformation requires a nuanced approach that respects the rights of both users and platforms. Ultimately, the goal should be to foster a vibrant and inclusive online ecosystem while safeguarding fundamental liberties in the digital age.