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  • Writer's pictureSarah Anderson

Confusion on Social Media Content Regulation

The U.S. Government cannot decide whether social media content regulation is an infringement of first amendment rights or the opposite, a protection against unlawful first amendment censorship. This dichotomy forces Courts to create cyber law jurisprudence in rapid succession, with the Communications Decency Act and First Amendment serving as the navigational beacons.

The First Amendment right to free speech is guaranteed by the U.S. Constitution. The Communications Decency Act of 1996 (47 U.S.C. 230) originated from a desire to protect children from indecent content during the early years of the internet, without crushing further internet innovations.

Section 230 of the Communications Decency Act later evolved to shield social media platforms from liability of third-party content posted on the social media platform. For example, a clothing company gets terrible reviews and comments on its Facebook page. The clothing company could seek libel damages against the individual that posted the reviews and comments (if untrue), but not Facebook itself.

Almost two decades later, social media is arguably the most powerful tool found online for content creators and voyeurs. And depending on the issue(s) presented, federal officials take differing positions on the questions of regulation over social media content posted by users.

In 2021, two states (Florida and Texas) issued legislation requiring Social Media platforms to impose certain due diligence measures before censoring user content. Currently pending review by the USSC, the U.S. Fifth Circuit Court of Appeals reviewed the 2021 Texas legislation and reversed a U.S. District Court’s opinion in Netchoice, L.L.C. v. Paxton, which issued an injunction against the proposed legislation taking effect. In reversing the lower court, the Fifth Circuit determined that the proposed laws “chilled censorship” and not free speech.

The Eleventh Circuit reviewed the Florida legislation in Moody v. NetChoice, L.L.C., ultimately making an entirely different finding than the U.S. Fifth Circuit by holding that “social-media platforms’ content-moderation activities are ‘speech’ within the meaning of the First Amendment[.]”

The USSC is reviewing the conflicting opinions from the Fifth and Eleventh Circuits, and is expected issue a stabilizing opinion sometime before July 2024. The U.S. Solicitor General filed an Amicus Brief with the USSC on the conflicting decisions, urging the Court to adopt the Eleventh Circuit’s opinion and condemn state legislation that creates processes that social media platforms must use before censoring user content.

However, these efforts against social media regulation reflect a 180 degree turn from previously conduct identified in federal courts. Last month, the Fifth Circuit found in favor of social media users and the States of Missouri and Louisiana, all of whom successfully alleged that federal officials coerced social-media platforms into censoring certain social-media content; specifically, those posts related to COVID issues and 2022 Mid-Term Congressional Elections. The Plaintiffs claimed their First Amendment rights were violated and sought to enjoin the Defendants’ conduct (engaging with Social Media platforms to flag and remove content).

The Fifth Circuit held that Western District of Louisiana “did not err in determining that several officials—namely the White House, the Surgeon General, the CDC, and the FBI—likely coerced or significantly encouraged social-media platforms to moderate content, rendering those decisions state actions. In doing so, the officials likely violated the First Amendment.”

In May 2023, the USSC in Twitter v. Taamneh, held that Twitter (and other social medial platforms) were not illegally aiding or abetting terrorists under the Anti-Terrorism Act by merely hosting their content, declining to remove it, or recommending it to others according to its standard algorithms. Albeit a different question than whether content regulation impugns free speech, the USSC noted its prior opinion on the Communications Decency Act from Reno v. ACLU, 521 U.S. 844 (1997), that any vague provisions, not sufficiently tailored to protect fundament freedoms, would not be upheld.

For news sites, opinion-news sites, lobbying and advocacy groups, these cases are important to watch with the upcoming election season.

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