How Supreme Court should rule on social media moderation

The Supreme Court heard oral arguments recently in two cases that could have a profound effect on the future of the internet and social media.

The cases — NetChoice v. Paxton and Moody v. NetChoice — involve laws in Texas and Florida that prohibit social media companies from removing content from their platforms, clearly violating the 1st Amendment rights of private companies. If these laws are upheld, they will make the internet and social media enormously worse.

The Texas law bars social media platforms with at least 50 million active users — such as Facebook, X (formerly Twitter) and YouTube — from removing content based on the views expressed. The Florida law prohibits them from removing speech by political candidates and “journalistic enterprises”; it also requires them to notify users of any content moderation decisions and provide an explanation.

Texas and Florida adopted these laws based on a widely promoted but unfounded perception that social media platforms are more likely to remove conservative expression. Researchers have found no evidence to support this belief.

But even if there were a basis for concern, social media platforms — like all other media — have a 1st Amendment right to decide what speech to convey.

Half a century ago, in Miami Herald Publishing Co. v. Tornillo, the Supreme Court unanimously invalidated a Florida law that required newspapers to provide space to political candidates who had been attacked in print. The court emphasized that freedom of the press allows a newspaper to decide what to include and exclude.

The government can’t regulate speech on privately owned social media platforms any more than it can edit a newspaper. Several justices, including conservatives Amy Coney Barrett and Brett M. Kavanaugh, made similar points during the oral arguments.

The U.S. 11th Circuit Court of Appeals declared the Florida law unconstitutional on this basis. It also found that requiring a justification to be provided for every decision to remove material would make content moderation impossible. In considering the Texas law, however, the 5th Circuit Court of Appeals ruled that social media companies are, like phone companies, “common carriers” and can therefore be prevented from removing content.

The problem with this argument is that social media platforms are not and never have been common carriers that simply transmit everything that is posted. Nor would anyone want them to be.

Social media platforms constantly remove awful content. Facebook removes 3 million pieces of hate speech a month, an average of more than 4,000 per hour. And yet no reasonable person would accuse Facebook of being too effective at removing such speech.

Fortunately, social media companies remove a wide array of awful expression, including violent and sexually explicit content, much of it protected by the 1st Amendment.