The First Amendment protects social media
The nation’s highest court Monday heard oral arguments in challenges to Florida and Texas laws in which state governments seek to force social media companies to let more people say more things on their platforms — in other words, to behave less like publishers and more like free-for-all public squares.
Though it may seem counterintuitive, the First Amendment is firmly on the side of companies that try to set and enforce rules of the road. The attempts by so-called conservatives to demand X, Facebook and their cousins to turn into Wild Wests where no moderation of the postings is constitutionally permissible misunderstand the fundamentals of American rights and responsibilities.
ADVERTISING
The social media landscape is fairly crowded. There’s X, which really is Twitter; Facebook and Instagram and Threads, all owned by Meta; TikTok; Google’s YouTube; and smaller competitors like Bluesky and Mastodon. There’s nothing especially novel about posting a message or photo or video that can be instantly seen — and reacted to — by hundreds if not thousands if not millions of people worldwide.
Rather, one of the biggest things that differentiates the companies is their approach to who gets to post and under what conditions. While none allow users to enthusiastically support terrorism, some are friendlier to bullies. Some aggressively police disinformation, such as lies about elections and vaccines and crime statistics, while others have an easier hand. Sometimes a social network promises almost total freedom; invariably, it fails — because users get dragged into the muck.
Thus, companies train people and algorithms to try to flag objectionable content and take it down. Serial offenders get their accounts suspended or worse. On good days, some semblance of civility, imagine that, prevails.
Of course, mistakes are made — with hyperprotective filters sometimes silencing legitimate expression, including news stories that rub some the wrong way (like COVID lab leak theories). Conservatives are convinced that those mistakes habitually censor right-wing speakers, leaving progressives free to dominate these spaces.
Even if that were true, and a quick tour of any of the aforementioned social networks proves otherwise, demanding all popular social networks to shred essentially all their content moderation is to strike a blow against freedom. Moderation, even when imperfect, is an attempt to create a decent climate for lively expression.
A platform that chooses to let people share political news and commentary can’t crack down on those who say Donald Trump is proven to have won the 2020 election. Deciding what is allowable politics is not something that these private firms want to do. Alternatively, they’ll have to get even more aggressive in their content moderation — and ban absolutely all speech on many subjects, lest they run afoul of the courts’ demand for content neutrality.
No, Twitter and Facebook and the like will never be equivalent to newspapers, pure publishers who affirmatively select and edit each and everything they print and are held legally liable if they smear someone in the process. Open-to-almost-all networks can’t be expected to review millions of posts every second. But neither are they public squares where everything short of incitement and other illegal forms of expression must be permitted.
—New York Daily News Editorial Board/TNS
