Note: This was originally published as the daily newsletter for the Columbia Journalism Review, where I am the chief digital writer
On Tuesday, the Supreme Court issued an order blocking a Texas law that would prevent large social platforms such as Facebook, Twitter, and YouTube from removing content, except in extreme cases (content that involves the sexual exploitation of children, criminal activity, or threats of violence.) The order was brief, because it was triggered by an emergency application from two organizations opposed to the law. NetChoice, a coalition of online service companies, and the Computer & Communications Industry Association—a group whose members include Google, Facebook, and Twitter—asked the Supreme Court for an emergency decision because they argued that the law is “an unprecedented assault on the editorial discretion of private websites” and also a breach of the platforms’ First Amendment rights.
Even as it issued the order, however, the Supreme Court noted that the case is still before an appeals court in Texas, and that the issues at the center of the case are so critical that they will likely need to be considered at length by the Supreme Court at some point. “This application concerns issues of great importance that will plainly merit this Court’s review,” the decision states. In a dissenting opinion issued as part of the Supreme Court’s decision, Justice Alito said social media platforms have “transformed the way people communicate with each other,” but that “it is not at all obvious how our existing precedents, which predate the age of the internet, should apply.” To some, this seemed to open the door to a challenge to the platforms’ First Amendment rights.
Last week, meanwhile, an appeals court in Florida blocked most of the provisions in a similar state law that would have prevented the platforms from removing accounts belonging to politicians. In its decision, the court stated that “it is substantially likely that social-media companies—even the biggest ones—are private actors whose rights the First Amendment protects [and] that their so-called content-moderation decisions constitute protected exercises of editorial judgment.” Specifically, the court said that prohibiting companies from removing content was not allowed, but provisions in the law that require the platforms to provide clear standards for content and allow users to access their data likely don’t violate the First Amendment and can be implemented.
Continue reading “The courts, the platforms, and regulating speech”







