• Social Media vs. Conservative Thought; Who is a Publisher?

    March 14, 2024

    Tags: , , , ,
    Posted in: Democracy, Post-Constitution America

    The Supreme Court heard oral arguments in late February on the fate of conservative thought in mainstream social media. It doesn’t look good for our side.

    The Court expressed skepticism about Florida and Texas laws (Moody v. NetChoice, NetChoice v. Paxton) enacted in response to social media platforms censoring conservative views after the January 6 Capitol riot. The state laws restrict social media companies’ choices to cancel user-generated content and require individualized explanations for editorial choices. Media trade groups challenged the laws, with the 11th Circuit blocking Florida’s enforcement while the U.S. Court of Appeals for the 5th Circuit upheld the Texas law. The Texas law is not currently in effect, however, because in 2022 the Supreme Court barred the state from implementing it with the challenge ongoing.

    During the oral arguments, the Justices suggested the laws may violate the First Amendment by infringing on companies’ editorial decisions.

    The deeper questions are whether or not social media are publishers or conveyers (common carriers), and whether or not they are bound by the First Amendment not to censor thought. The first issue tries to draw out the question of whether say Facebook (Google, et al, we’ll use “Facebook” as a proxy) are publishers in the same sense The American Conservative magazine and web site are. A publisher by definition has a First Amendment right to select which authors to include/exclude and what topics to write about. It is literally what a publisher does. A conveyance is closer to the phone company; they provide the means of communication fully independent of what is being communicated. The phone company, for example, could care less whether you are talking to mom about Aunt Sally’s apple pie recipe or organizing to burn the flag to protest an over-emphasis on mom and apple pie.

    More issues to resolve: the First Amendment prevents government from suppressing speech and has never been applied to private companies however large and dominant in the marketplace, and Section 230 of the Communications Decency Act, which says Facebook and others are not publishers (technically, the Act shields tech companies from liability for content published by others, i.e., Facebook is not liable for crazy postings.)

    Nonetheless, Florida and Texas passed laws that prohibited social media from editorially eliminating (conservative) thought. For example, the Florida law bars social media platforms from banning candidates for political office, as well as from limiting the exposure of those candidates’ posts. The Texas law prohibits companies from removing content based on users’ viewpoints. The laws also would have forced the platforms to explain each decision to delete, shadow ban or otherwise block a specific example of thought. The social media giants claim such regulation violates their First Amendment rights. They claim the Florida and Texas laws are unconstitutional if they apply at all, independent of who is or is not a “publisher.” The states maintain their laws do not “implicate the First Amendment at all, because they simply require social media platforms to host speech [a conveyance], which is not itself speech but instead conduct that states can regulate to protect the public. The business model for these platforms, the states say, hinges on having billions of other people post their speech on the platforms – something very different from, say, a newspaper that creates its own content and publishes it.”

    Justice Elena Kagan was one of several justices to question the constitutionality of the Florida and Texas laws, asking “Isn’t this a classic First Amendment violation?” [of Facebook’s rights] when the state is preventing the platforms from making their own editorial judgments. Justice Brett Kavanaugh also appeared unconvinced. He noted that the First Amendment protected against the suppression of speech “by the government” (same for Chief Justice John Roberts) not private companies and that the Supreme Court had a history of cases “which emphasize editorial control [such as Facebook’s] as being fundamentally protected by the First Amendment.” Justice Amy Coney Barrett said “it all turns on” whether the social media platforms are exercising “editorial control,” acting as a publisher, when they remove or deprioritize content. Justices also voiced concern the Florida law was quite broad, potentially applying not only to large social media platforms but also to other sites like Gmail, Uber, and Etsy. Texas law on the other hand specifically excludes standard web sites and tools such as Gmail.

    The justices pressed for a discussion of the interaction between the Texas law and Section 230 of the Communications Decency Act. Justice Neil Gorsuch stated there is a tension between the idea that a tech company can’t be held liable for its users’ speech and the idea that moderating that content is the tech company’s speech. Is it speech for purposes of the First Amendment, he asked, but not for purposes of Section 230? “Just as Florida may not tell the New York Times what opinion pieces to publish or Fox News what interviews to air, it may not tell Facebook or YouTube what content to disseminate,” the tech companies emphasize. Is content moderation just a euphemism for censorship? Justice Samuel Alito pressed tech companies to define the term “content moderation.” “If the government’s doing it, then content moderation might be a euphemism for censorship,” said a company representative. “If a private party is doing it, content moderation is a euphemism for editorial discretion.”

    The Biden administration filed a “friend of the court” brief against Florida and Texas supporting the tech groups.

    A decision by the Supreme Court is expected this summer. The Court is likely to prevent Florida and Texas from implementing laws restricting social media from removing conservative thought or controversial posts, even as they express concern about the power platforms wield over public discourse. That does not end the debate, however. The interplay between the First Amendment and Facebook is the most significant challenge to free speech in our lifetimes. Pretending a corporation with the reach to influence elections is just another place that sells stuff is to pretend the role of debate in a free society is outdated.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

  • Recent Comments

    • Rich Bauer said...

      1

      “The Supreme Court heard oral arguments in late February on the fate of conservative thought in mainstream social media. It doesn’t look good for our side.”

      You mean all the lies that aren’t fit to print?

      Since reformed Faux News got the shit sued out of it for printing lies about Dominion, and soon to be sued by Smartmatic, these “conservative” thinkers on your side want to communicate their bullshit through publishers like FB. Of course, FB doesn’t want to end up getting sued like Faux.

      And what is this conservative thought of Your side that is being suppressed, other than the elections were stolen, Covid is a Deep State plot, Trump is the Chosen One?

      Your side should be happy FB cleans this shit before it buries it. Your side can still read this shit on American Conservative. God knows, you need the subscribers.

      03/15/24 8:47 AM | Comment Link

    • John Poole said...

      2

      Being granted the freedom to speak one’s mind publicly as defined in the 1st Amendment seemed that the framers of the American Constitution were hubristically flaunting their status as history’s latest wise men.

      There might always be punishing consequences for expressing an opinion via social media that seems to debunk treasured beliefs of certain “constituents”. Israel’s war in Gaza is a good example. Is staying silent a possibly helpful solution to reducing the partisan and adversarial temperament of our times?

      03/15/24 1:00 PM | Comment Link

    • John Poole said...

      3

      The role of debate in our purported free society might indeed may be outdated but only for an enforceable period. Intelligent humans are concerned but we also know there will be eras where the controlling elites will figure out clever ways to maintain the favoring status quo by neutering criticism using the Supreme Court or Congress. No one party nor ideology holds the patent on that quest to soundly eliminate the opposition. I sense we will see the so called liberals and progressives of the Democratic Party surpass anything the MAGA group has embraced if Trump wins the POTUS in 2014.

      03/15/24 8:26 PM | Comment Link

    • John Poole said...

      4

      Bauer: I think you are pushing what a friendship with PVB can be but maybe not. True friends need to be brutal I guess.

      03/15/24 9:12 PM | Comment Link

    • Rich Bauer said...

      5

      JP,

      Peter is just another grifter. He writes for the AmCon grifters because, like the Nazis, they pay well.

      03/16/24 7:23 AM | Comment Link

    • Rich Bauer said...

      6

      JP,

      If Peter is really worried about the suppression of Truth, perhaps he should write about serious issues that affect US like the destruction of the Middle Class by the oligarch class and the corruption oligarch’s money destroys our political system. Of course, his AmCon grifter editors would throw them straight in the trash, but at least he would have some dignity.

      03/16/24 11:36 AM | Comment Link

    • Rich Bauer said...

      7

      JP,

      I shouldn’t reveal this, but Peter actually is writing an insider account about the MAGA descent into madness, similar to “We Meant Well” when Peter signed up to serve in America’s war crimes in Iraq so he could get material for his book. Don’t tell anyone for Peter’s safety because Trump just promised there would be a bloodbath when he loses…again. Hmmm, Maybe that’s why he moved to Hawaii.

      03/16/24 6:35 PM | Comment Link

    • Rich Bauer said...

      8

      “Florida and Texas passed laws that prohibited social media from editorially eliminating (conservative) thought. For example, the Florida law bars social media platforms from banning candidates for political office, as well as from limiting the exposure of those candidates’ posts.”

      WOW, maybe Meatball Ron is planning to expose Donnie Diapers’ post in the Epstein Files.

      Today, Governor Ron DeSantis signed HB 117, which allows for the public release of grand jury documents, such as those related to the 2006 Florida investigation into Jeffrey Epstein. Two victims of Epstein joined Governor DeSantis in Palm Beach to celebrate the justice that was being delivered.

      “The public deserves to know who participated in Jeffrey Epstein’s sex trafficking,” said Governor Ron DeSantis. “Nobody should be protected from facing justice due to their wealth or status, and those who harm children should be exposed and punished to the fullest extent of the law.”

      “Palm Beach County and the victims suffered from Epstein’s vile behavior before the world ever knew his name,” said Representative Peggy Gossett-Seidman. “I followed the story as we parents kept our kids close, but we never stopped seeking the truth. The police investigated relentlessly, and now the Governor opens up the last chapter of this sordid story.”

      Isn’t this the Ides of March? Et tu Desantis?

      03/16/24 9:24 PM | Comment Link

    • John Poole said...

      9

      Bauer- good points. the Donald might have plenty of “et tu?” guys capable of brandishing a dagger at the last moment. Side note- instead of billions for the folly of “space travel” we need to look inward not outward. Why and how do some become so devious and sinister? Some seem to be able to get away with awful behavior (Bubba and Hillary) while a guy like Trump doesn’t even have hide his sinister disposition- he flaunts it. We don’t need starships we need synapse ships.

      03/17/24 12:18 PM | Comment Link

    • Rich Bauer said...

      10

      JP,

      I do not consider Donnie Diapers to be sinister. He represents too many Americans: fat, entitled and too cowardly to stand up for their country just like the Roman elite before the fall.

      Donnie Diapers warns of a bloodbath when he loses the election again. He is right- a Republican bloodbath. You can bet the fat slob will get stabbed in the back by a group of senators who will be happy to send his ass to jail.

      03/17/24 9:36 PM | Comment Link

    • Rich Bauer said...

      11

      “Conservative thought” should give it another think: Donnie Diapers talking shit in Ohio before a crowd ranted about immigrants, stating, “I don’t know if you call them people. In some cases, they’re not people in my opinion. But I’m not allowed to say that because the radical left says that’s a terrible thing to say.”

      But in Conservative minds, not so much. So which side is Peter pandering to Speaking in Ohio before a crowd of his rabid fans, the former president ranted about immigrants, stating, “I don’t know if you call them people. In some cases, they’re not people in my opinion. But I’m not allowed to say that because the radical left says that’s a terrible thing to say.”today?

      03/18/24 9:32 AM | Comment Link

    • Rich Bauer said...

      12

      Trump’s conservative thought of the day

      “I actually think they hate Israel. Any Jewish person that votes for Democrats hates their religion … They hate everything about Israel, and they should be ashamed of themselves because Israel will be destroyed.”

      “Adolf Hitler did so good things.”

      Kelly’s Hero: ‘Well, but Hitler did some good things.’ I said, ‘Well, what?’ And he said, ‘Well, [Hitler] rebuilt the economy.’ But what did he do with that rebuilt economy? He turned it against his own people and against the world. And I said, ‘Sir, you can never say anything good about the guy. Nothing,’” retired Marine Gen. John Kelly said. “It’s pretty hard to believe he missed the Holocaust, though, and pretty hard to understand how he missed the 400,000 American GIs that were killed in the European theater.”

      Dont get Trump’s German blood up. There might be a bloodbath.

      03/19/24 9:43 AM | Comment Link

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