Social Media is Likely Headed to the Supreme Court
Last week, the United States Supreme Court granted an emergency stay preventing a Texas social media law from going into effect. Previously the Fifth Circuit ruled against the social media companies leaving them scrambling to figure out if they could comply with the law’s provisions. The decision by the Supreme Court means that the decision is returned to the Fifth Circuit for consideration on its merits.
The Texas law, HB20, would prevent social media companies from “censoring” content which it defines as “block, ban, remove, de-platform, demonetize, de-boost, restrict, deny equal access or visibility to or otherwise discriminate against expression.” Companies could remove content that violated their clearly-stated terms of service, such as pornography, but would have to allow users to appeal that process and provide an answer within 14 days. Failure to meet these terms, as well as other “transparency” requirements, could result in a lawsuit from either an individual user or the Texas Attorney General.
The legislation wouldn’t simply affect companies such as Tik-Tok, Meta, and Twitter, but a variety of social media websites such as Twitch, Reddit, and Pinterest.
Companies like Reddit put moderation decisions in the hands of communities, such as downvoting and subreddit moderators. But if the Texas law were to go into effect, these decisions would require both the company to review all complaints and face lawsuits with discovery. This would allow any user to bring a complaint just because their content wasn’t as popular as they believed it should be.
Given the billions of pieces of content created each day, this is both impossible and cost-prohibitive, even for some of the largest companies, not to mention how it would crush companies that turn a much more meager profit.
Even with these consequences, there seems to be an appetite to hear the case in front of the Supreme Court. While the Court prevented the law from taking effect, four justices voted in the other direction. Most notably, Justice Samuel Alito wrote a six-page dissent examining social media companies and the First Amendment.
The Alito dissent provided an interesting roadmap for how he and other Justices might view a case like this. For example, while the dissent noted that the Supreme Court has often protected the rights of media companies to decide what content to carry, they have made exceptions when it comes to certain kinds of technologies. It’s possible that the Court might be convinced that social media companies can be restricted in ways that newspapers or television channels cannot.
There is still a long legal path ahead for the Texas social media law, but for lawmakers wanting to make statements against technology companies and hoping courts will protect them from the consequences of their laws going into effect, they should be careful. A court might just give them what they want.