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The Supreme Court Will be Dragged into the Social Media Censorship Dispute. Businesses Should Care.

Thursday, October 20th, 2022

It looks like the Supreme Court will be forced to enter the social media free-speech policy war. While this has enormous implications for society, it also may have consequences for businesses.

Conservatives rail against what they perceive as censorship by social media companies, especially Twitter and Facebook. Responding to that criticism, Florida and Texas enacted laws that restrain the ability of social media companies to restrict their users’ speech through post deletion, kicking off users, and burying disfavored content with various content-moderation tools such as shadow banning. A group of internet-focused trade organizations challenged the constitutionality of these laws.

While the laws of the two states have unique elements, they have major features in common.

They each classify social media platforms as common carriers. Private companies can be restricted from many kinds of discrimination if they are common carriers. A common carrier is a business that provides some transportation or transmission service to the general public. While the phrase “common carrier” brings to mind transportation services such as airlines and railroads, it also applies to some communications companies, such as telephone and Internet service providers. Whether social media companies are common carriers may be central to whether the states’ laws survive.

The laws of each state put limits on what kinds of posts can be deleted or buried. For example, Florida protects political candidates and “journalistic enterprises,” which include both print and online publications with sufficient subscribership or web traffic. Texas more broadly protects all social media posters from viewpoint discrimination.

The statutes of both states also require social media companies to disclose their editorial practices, including what kinds of speech those companies ban, delete, promote, or hide.

Federal appellate courts have come to opposite conclusions as to the constitutionality of these laws. The difference in outcome mainly arises from the courts’ legal analysis, not differences in the statutes.

The federal appellate court with jurisdiction over Florida, the Eleventh Circuit, declared that most of the Florida statute is unconstitutional because it held social media companies have a First Amendment free speech right to decide what speech to carry and to delete – editorial control. Crucially, the court also rejected Florida’s classification of social media companies as common carriers. It allowed some of Florida’s disclosure rules to stand, but those aren’t the heart of the law.

The federal appellate court with jurisdiction over Texas, the Fifth Circuit, issued its decision later and saw things differently. It upheld Texas’s classification of social media companies as common carriers. It also ruled that the Texas law does not violate First Amendment speech protections because it regulates social media censorship instead of compelling or restricting the social media companies’ own speech.

The Florida Attorney General petitioned the Supreme Court to take up the issue. The Supreme Court may be forced to do so. This is an important issue, and only it can fix the split in outcomes of the two federal appellate courts.

What is the effect of all of this on businesses?

Any business whose products or services might be considered inappropriate by people on the right or left must think about what will happen if such businesses lose the ability to promote their products or services through social media. While the major social media companies presently are controlled by people with liberal views, the rules might change if conservatives buy those outlets. One can make a long list of legal products and services that attract the ire of the left or right.

Then there are companies that hold varying views on controversial business policies, such as diversity, equity, and inclusion (DEI), LGBT rights, or environmental, social, and governance (ESG) investment guidance. Will businesses that hold what social media companies consider to be the wrong views or fail to espouse the right ones be kicked off social media?

And what about businesses with ties to certain parts of the world? What about Israel, Saudi Arabia, China, Venezuela, and even Russia and Iran to the extent U.S. companies can still do business there? Will access to social media be used to try to force companies to cut ties with such countries or, conversely, punish them for pulling out?

Obviously, restricting the actions of social media companies is controversial and presents interesting and challenging constitutional questions. This would make a great hypothetical on a law school exam. But for some businesses, perhaps many, it’s not hypothetical. The outcome may determine whether such businesses can stay on social media and, in some cases, survive.

Written on October 19, 2022

by John B. Farmer

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