Florida, Texas, and the fight to control platform moderation

Note: This was originally published as the daily newsletter at the Columbia Journalism Review, where I am the chief digital writer

On May 23, the US Court of Appeals for the 11th Circuit struck down most of the provisions of a social-media law that the state of Florida enacted in 2021, which would have made it an offense for any social-media company to “deplatform” the account of “any political candidate or journalistic enterprise,” punishable by fines of up to $250,000 per day. In their 67-page decision, the 11th Circuit justices ruled that any moderation decisions made by social-media platforms such as Twitter and Facebook, including the banning of certain accounts, are effectively acts of speech, and therefore are protected by the First Amendment. Last week, however, the US Court of Appeals for the 5th Circuit came to almost the exact opposite conclusion, in a decision related to a social-media law that the state of Texas enacted last year. The law banned the major platforms from removing any content based on “the viewpoint of the user or another person [or] the viewpoint represented in the user’s expression or another person’s expression.”

In the 5th Circuit opinion, the court ruled that while the First Amendment guarantees every person’s right to free speech, it doesn’t guarantee corporations the right to “muzzle speech.” The Texas law, the justices said, “does not chill speech; if anything, it chills censorship. We reject the idea that corporations have a freewheeling First
Amendment right to censor what people say.” The court dismissed many of the arguments technology companies such as Twitter and Facebook mamde in defense of their right to moderate content, arguing that to allow such moderation would mean that “email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business.” The appeals court seemed to endorse a definition used in the Texas law, which states that the social media platforms “function as common carriers,” in much the same way that telephone and cable operators do.

NetChoice and the Computer and Communications Industry Association—trade groups that represent Facebook, Twitter, and Google—argued that the social-media platforms should have the same right to edit content that newpapers have, but the 5th Circuit court rejected this idea. “The platforms are not newspapers,” Judge Andrew Oldham wrote in the majority opinion. “Their censorship is not speech.” Given the conflicting arguments in the 11th Circuit case and the 5th Circuit decision, Ashley Moody, the Attorney General for Florida, on Wednesday asked the Supreme Court to decide whether states have the right to regulate how social media companies moderate. The answer will affect not just Florida and Texas, but dozens of other states—including Oklahoma, Indiana, Ohio, and West Virginia— that have either passed or are considering social-media laws that explicitly prevent the platforms from moderating content, laws with names such as The Internet Freedom Act, and The Social Media Anti-Censorship Bill.

“This is a really major question: How do we regulate social media platforms?” Genevieve Lakier, a professor at the University of Chicago Law School, said in an interview with the Washington Post. “I think it could shape the operation of the internet really significantly. If these laws are upheld, it’s going to require the platforms to host a lot of speech that they don’t want to host.” The laws in Texas, Florida, and the other states don’t mention Donald Trump by name, but it seems likely that some were triggered in part by the fact that the former president was banned by most of the major social-media platforms, including Facebook and Twitter, following the attack on the US Capitol on January 6, 2021. Many of these laws are also driven by a long-standing belief on the part of US conservatives that the platforms routinely censor right-wing content, something that has been the focus of multiple Congressional hearings over the past several years (researchers say there is no proof of any such tendency on the part of the social-media platforms).

Even if Florida had not already petitioned the Supreme Court to rule on the question of platform moderation, several justices on the country’s highest court have already suggested that they are eager to confront this problem head on. In a hearing in May, when the Supreme Court was asked to keep the Texas law from taking effect, Justice Samuel Alito wrote in a dissenting opinion that the case “concerns issues of great importance that will plainly merit this Court’s review.” Alito went on to say that social media platforms have transformed the way people communicate with each other and obtain news, and “it is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.” Some took this to mean that Alito is open to questioning whether the First Amendment protects platform moderation.

The “common carrier” argument, meanwhile—the idea that the social-media platforms are no different than phone companies—could also get a favorable hearing from some on the Supreme Court, based on comments made by Justice Clarence Thomas in a decision last year. Thomas cited a 1914 Supreme Court ruling that said making a private company a common carrier may be justified when “a business, by circumstances and its nature…rise[s] from private to be of public concern,” and that “there is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.” In the same decision, Thomas said that “the concentrated control of so much speech in the hands of a few private parties” was unprecedented, and that the court “will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure.”

What all of this means, Professor Lakier told the Post earlier this year, is that “the First Amendment is to some degree up for grabs.” Old principles about free speech and rights, she said, “are being pushed and pulled and reimagined in light of changing technological conditions and changing political alignments.” And as the recent decision overturning Roe v. Wade showed all too clearly, relying on established precedents—even those that seem unassailable—is not wise in the current political environment.

Here’s more on the platforms and moderation:

Editorial judgment? Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, writes that the First Amendment questions presented by this case “are immensely important—questions including whether social media companies exercise ‘editorial judgment’ when they decide what content to allow on their platforms, in what circumstances governments can override that judgment, and how courts should evaluate laws that burden that judgment in the name of transparency, fairness, or privacy.” If the Supreme Court agrees to hear the case, Jaffer said, “its answers to these questions will define free speech online for a generation.”

Everything in moderation: The Journalism Competition and Preservation Act, introduced recently by Senator Amy Kobuchar, wasn’t supposed to be about platform moderation. The law would allow media outlets to negotiate with the platforms for payment for their news, similar to a law in Australia. During discussion of the JCPA last week, however, Senator Ted Cruz introduced an amendment that prevents the platforms and news outlets from bringing up issues related to moderation during their negotiations. Senator John Kennedy, co-sponsor of the bill, said the amendment “bars Big Tech firms from throttling, filtering, suppressing or curating online content” (It’s not clear whether this restriction applies only to moderating the content of outlets the platforms are negotiating with).

Algorithmic bias? An internal report on Facebook’s moderation of Israeli and Palestinian content shows that the platform deleted Arabic content at a far greater rate than Hebrew-language posts last May during an outbreak of violence on the Gaza strip, The Intercept reported. Facebook’s actions “appear to have had an adverse human rights impact … on the rights of Palestinian users to freedom of expression, freedom of assembly, political participation, and non-discrimination, and therefore on the ability of Palestinians to share information and insights about their experiences as they occurred,” the report states. The report was commissioned by Meta, Facebook’s parent company last year and was written by Business for Social Responsibility, an independent consulting firm.

Other notable stories:

Note: This section of the newsletter is compiled with help from CJR’s new fellows: Pesha Magid, Mercy Orengo, and Emily Ann Russell

On Wednesday, Iran’s President Ebrahim Raisi canceled an interview with CNN anchor Christian Amanpour at the last minute, after Amanpour refused to wear a headscarf for the broadcast. The request came in the wake of violent protests that have swept Iran in response to the death of Mahsa Amini, a Kurdish woman who died in detention after she was arrested by Iran’s morality police for improperly wearing a headscarf. Iranian women have been publicly burning their headscarves and cutting their hair as they demand the right to choose whether they wear the item. Amanpour said she suspects the protests are the reason that Raisi canceled the interview.

British television channels gave Buckingham Palace a veto on the use of certain footage from Queen Elizabeth II’s state funeral, The Guardian reported, which allowed the royal household to request that certain clips be removed and not be used again. “Royal staff sent messages to the BBC, ITV News and Sky News during the event with the timestamps of footage they wished to exclude from future news broadcasts and social media clips,” the Guardian reported. “As a result, five short pieces of video featuring members of the royal family were removed from circulation.” The decision to offer the royal family a veto has caused “unease among some journalists,” the Guardian wrote.

On Thursday, CNN announced that Jake Tapper, who currently hosts the network’s 4 pm news show, The Lead, will take over CNN’s 9 pm primetime show from October 10 through the midterm elections. From 2017 to 2021, Chris Cuomo hosted the timeslot that Tapper now has, but CNN fired Cuomo over allegations of sexual misconduct with a former colleague. Some media analysts believe a number of the recent changes made by Chris Licht, CNN’s new CEO—including the cancellation of Brian Stelter’s Reliable Sources—are designed to shift the public image of the network and possibly also reshape advertisers’ opinions of where it stands on the political spectrum.

Researchers who studied the content that politicians post to Twitter say they found that those from mainstream parties in the UK and Germany post far fewer links to untrustworthy websites on Twitter than politicians from the US do. American politicians “posted a much higher percentage of untrustworthy content in their tweets, and that share has been increasing steeply since 2020,” the researchers wrote.

Nine major daily newspapers across Canada will stop publishing printed versions on Mondays as of October 17, according to a report from the Toronto Star. Postmedia, a national chain that owns daily newspapers in most major Canadian cities, said there will no longer be Monday print editions of the Vancouver Sun and The Province in British Columbia; the Calgary Herald, Calgary Sun, Edmonton Journal, and Edmonton Sun in Alberta; the Ottawa Citizen and Ottawa Sun in Ontario, and the Montreal Gazette. A Postmedia spokesperson blamed the “rapidly changing news consumption habits of their readers, advertisers needs, and high cost of newspaper printing and delivery.”

Vox Media published its annual map of the media landscape, showing which tech and/or media conglomerates own specific shows and streaming networks. Reporters Rani Molla and Peter Kafka noted that services like Netflix have lost much of their value, in part because they say “Wall Street is now much more ambivalent about streaming.” Traditional players have also lost much of their value in the past few years, Molla and Kafka report: In 2016, for example, Time Warner was worth $85 billion; now the company that used to go by that name “has been handed over to the Discovery cable networks, which has a combined value of only about $30 billion.”

In the latest instalment of the Trust in News project, from the Reuters Institute for the Study of Journalism at Oxford University, researchers found that levels of trust in news on social media and messaging apps “is consistently lower than audience trust in information in the news media more generally.” The report drew on survey responses collected in the summer of 2022 in Brazil, India, the UK and the US, and found what it called “gaps in trust” for most platforms in each of those four countries. “News about politics is viewed as particularly suspect and platforms are seen by many as contentious places for political conversation,” the report states.

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