Conflicting lower court rulings about removing controversial material from social media platforms point toward a landmark Supreme Court decision on whether the First Amendment protects Big Tech’s editorial discretion or forbids its censorship of unpopular views.
The stakes are high not just for government and the companies, but because of the increasingly dominant role platforms such as Twitter and Facebook play in American democracy and elections. Social media posts have the potential to amplify disinformation or hateful speech, but removal of controversial viewpoints can stifle public discourse about important political issues.
Governments that say conservative voices are the ones most often eliminated by the decisions of tech companies scored a major victory Friday, when a divided panel of the U.S. Court of Appeals for the 5th Circuit upheld a Texas law barring companies from removing posts based on political ideology.
“Big Tech’s reign of endless censorship and their suppression of conservative viewpoints is coming to an end,” Texas Attorney General Ken Paxton (R) said after the decision. “These massive corporate entities cannot continue to go unchecked as they silence the voices of millions of Americans.”
But a unanimous panel of the U.S. Court of Appeals for the 11th Circuit went the other way earlier this year, saying that a similar Florida law violated constitutional protections for tech companies that do not want to host views on their platforms that they find hateful, divisive or false.
Judge Kevin Newsom criticized a depiction of social media platforms as “dumb pipes … reflexively transmitting data from point A to point B.” Instead, he wrote, their “content-moderation decisions constitute the same sort of editorial judgments” entitled to First Amendment protections when made by a newspaper.
All of the appeals court judges considering the Florida and Texas laws have noted the difficulty of applying some Supreme Court precedents regarding legacy media. And all weighing in so far were nominated by Republican presidents, with Newsom and Judge Andrew Oldham, who wrote the conflicting opinion in the Texas case, both nominated by President Donald Trump, who was kicked off Twitter in the aftermath of the U.S. Capitol riot on Jan. 6, 2021.