The Supreme Court and Big Tech Censorship
Art by Mandi Maldonado
“If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.”
DeSantis is just one among several conservative voices who assert that Big Tech is controlling the media to unfairly suppress conservative viewpoints, pushing the national narrative towards a hidden, progressive agenda. This wave of fear has prompted two prominent conservative states to draft laws aimed at regulating Big Tech’s power to moderate content. However, these laws have sparked a wave of legal challenges from angry tech companies, prompting important questions about our country’s freedoms of speech, press, and expression.
In response to the well-known ban of Donald Trump by X (formerly known as Twitter) Florida passed a law designed to prohibit social media companies from banning political candidates on their platforms. Pushed by Governor DeSantis, the Stop Social Media Censorship Act in Florida subjects social media companies to fines up to $250,000 if they try to ban a political figure from using their platforms. Hilariously, a last-minute provision was added into the law, exempting any company that “owns and operates a theme park or large entertainment complex” - aka Disney. The law sailed through Florida’s legislature and was signed into law May 24, 2021.
Mirroring the sentiments of Florida, Texas passed a similar law in September 2021, known as HB 20. This law mandates social media platforms with over 50 million users to provide greater transparency, requiring platforms to provide reports disclosing what content has been removed as well as their content moderation practices. It also establishes a “user complaint” system where users can appeal to the company if they believe their content was wrongfully taken down. If the social media platform fails to take said actions, the Texas Attorney General is allowed to sue the platform.
While the bills tackle different aspects of a supposed “Big Tech censorship wave”, they both reflect a new age where having authority or a voice in how the media portrays a political candidate is critical to their success. Both bills attempt to curb Big Tech’s rising influence in the political realm. However, with this new age comes new legal questions. Several lawsuits have been brought against the Florida and Texas law, and two US Court of Appeals cases have ruled conflictingly, creating room for the Supreme Court to rule on the legality of these laws.
Two trade groups, NetChoice and the Computer & Communications Industry Association, sued the Florida and Texas government for their laws, asserting that the First Amendment protects private companies from government regulation in determining what content they produce. In response, tech companies are angry, believing that they are being told what speech they can and can’t disseminate and may be forced to carry content that violates their own content moderate rules.
The Eleventh Circuit Court case against Florida’s Stop Social Media Censorship Act sided with tech companies, reasoning that the law violates social media sites’ First Amendment rights by denying them the “ability to speak through content moderation.” This prevents Florida’s law from going into effect, for the time being.
Regarding Texas’ HB 20, the Fifth Circuit Court ruled in contrast to the Eleventh Circuit’s decision. They rejected the argument that social media censorship was a form of speech, asserting that the content does not express the platform’s views, simply those of the user. Therefore, restricting a platform’s ability to censor user speech is actually allowing more free speech, enabling users to more freely speak their mind online. The ruling also emphasized the goal of social media platforms to serve the public equally, even though they only do business with those who agree to their terms of service.
The key difference between the Eleventh Circuit’s ruling and the Fifth Circuit is the way a speaker is defined. Should social media companies be considered speakers with rights and freedoms of speech? What counts as an “expressive speech” for a social media platform?
Precedent from the Supreme Court provides mixed definitions. Private companies certainly have a recognized right to have editorial control over what gets published, representing a freedom of press. For example, a private newspaper company has the liberty to pick what it wants to publish, including choosing which articles they want to include, and which should be excluded from their publication. Yet, a social media company is distinctly different from a newspaper company. Instead of editors filtering out what information should and shouldn’t be published, algorithms pick out what kind of information is inappropriate, and the number of people that use the sites to publish their opinions and thoughts is well into the hundred millions. This has created ambiguity for lower courts, creating room for conflicting decisions.
Following an emergency motion, the Supreme Court took up the case of Texas law in May 2022. They granted a temporary suspension of the law and sent the case back to the Fifth Circuit Court. The court split unconventionally on whether to suspect the law or not, with three conservative Justices and one liberal Justice supporting the law. The majority five Justices sided with private companies, upholding the right of corporations to choose what they wish to censor.
The Supreme Court has already deferred hearing First Amendment challenges to both the Florida and Texas laws. However, they recently announced that the Court will issue a ruling on the Florida and Texas cases. This will be the most high-profile legal challenge against Silicon Valley and Big Tech, and this case has the potential to potentially reshape the role of social media in future elections. Importantly, the pressure to accept these cases reflects a mounting fear of liberal censorship and media control, especially as the 2024 election nears.
There is no evidence to suggest that social media companies carry a political lean, if anything, reports have found that conservative media personalities still dominate online discussions. One example is comparing Ben Shapiro’s social media interactions with Joe Biden’s over the same period of time. Shapiro received around 14 million more interactions than Biden himself. The notion that Silicon Valley is militarizing social media on behalf of progressives is simply baseless.
Yet is there a fear grounded in reality that Silicon Valley does have a growing political influence? This political interest in Silicon Valley and its tech companies is a relatively recent phenomenon, but for years it has preferred to lie on the fringes of American politics. It seems each time Silicon Valley was pushed into the political spotlight, it happened out of force rather than choice. In 2018, Mark Zuckerberg was summoned to testify in front of the Senate’s Commerce and Judiciary committees to discuss how Facebook’s data protected practices. Two years later, Zuckerberg was called in again to discuss Big Tech’s content moderation practices.
As all of this is relatively recent, the full extent of Big Tech’s influence on the political arena remains unclear. Yet several predictive measures, including money spent on lobbying, indicate that Silicon Valley’s influence is rapidly growing. Between 2020 and 2021, the major tech companies, including Apple, Amazon, Google and Facebook, increased their spending by over $21 million. And this number is only going to keep growing, as these companies certainly have the resources to be of even more influence within the coming years.
The reality is that there is a reason to fear Big Tech: they have money, and therefore power over the political game. But perhaps this fear is not for the reason conservatives like DeSantis publicize. Big Tech will do what it needs to do to increase profit, be it partisan or not. It is within their power to influence public opinion, and there is a fear that these platforms will favor speech that is controversial and potentially misleading, if it brings on users. Zuckerberg himself admitted during a Senate hearing that partisan content attracts more engagement with the platform.
Rather than pointing fingers at Silicon Valley for favoring one ideology over another, we must look at the incentives that drive Big Tech. The more time users engage with the platform, the more advertisements the platform can run, increasing profit. Therefore, there is little monetary incentive for social media companies to censor controversial speech, which often sparks engagement and reactions. The role of social media in campaigns and political advocacy is only going to grow in the foreseeable years, but for right now, it will be up to the courts to decide if and what limits exist.