The Supreme Court of the United States issued two important rulings on Thursday in which it upheld the freedom of social networks to set their own content moderation policies, ban or expel users and delete messages. The rulings represent a success for platforms such as Facebook, Instagram, X, TikTok and YouTube and a defeat for Texas and Florida, whose laws to limit these moderation policies were in question. These states, under Republican control, wanted to limit the decisions of these networks because they considered that they contributed to silencing conservative voices, such as those defending the electoral hoax that the elections were stolen from Donald Trump or those publishing misinformation about vaccines.
The two parties, the States and the platforms, were involved in the dispute under the banner of freedom of expression that enshrines the First Amendment of the Constitution against state interference. Texas and Florida considered that banning messages and users violates it; The platforms, represented by sector associations, denounced that it was these laws that violated it by preventing them from choosing what to publish on their platforms. For States, social networks are more like telephones – communications cannot be interfered with; for the platforms, rather newspapers, with their editorial policy.
The Supreme Court agrees with the networks. “Like the publishers, cable operators and pageant organizers this Court has previously considered, major social media platforms curate their content by combining ‘diverse voices’ to create a distinctive expressive offering,” The Texas ruling says, The Texas law unanimously ruled in the direction of the ruling, albeit with different arguments. “Their decisions about what messages are appropriate give the feed a particular expressive quality and ‘constitute the exercise’ of a protected ‘editorial control.’ And the Texas law addresses those expressive choices by forcing the platforms to present and promote content on their platforms.” feeds that they consider objectionable,” adds the ruling, for which the progressive judge Elena Kagan was the rapporteur.
The Supreme Court’s decision is of extraordinary importance for the future of social media and the content they disseminate. Preventing content moderation policies could have led to a surge in disinformation and hate speech, with no way of stopping it except when a law was violated. During the hearing, the judges already seemed to be leaning towards supporting the right of the platforms to moderate their content.
The laws (whose content is similar, but with their own nuances) were challenged before the federal courts, with contradictory results: one ruling annulled the Florida law, while another supported the Texas law, so it seemed clear that the Supreme Court would agree to unify the doctrine in this regard. The judges of the High Court already provisionally suspended the application of the Texas law last year, in a decision made by 5 votes to four. The Supreme Court has a majority of six conservative judges compared to three progressive ones.
The Supreme Court and the networks
The judges had already decided to uphold the exemption of technology companies from liability for content published by their users in a ruling issued last year. In this ruling, they had also ruled on other disputes related to social networks. First, they resolved a relatively minor issue: the right of public officials to block other users on social networks. In March, they issued two rulings in which they unanimously concluded that a public official can block his followers if he makes personal use of the account, but not if he exercises his authority over it.
Last week they resolved another case in which Republican-led states confronted the Biden Government to find out how far the Administration can go to combat controversial publications on social networks on topics such as covid or electoral cleanliness. A federal appeals court sided with the states, finding that administration officials unconstitutionally coerced the platforms to limit conservative viewpoints. However, the Supreme Court ruled that Joe Biden’s Government did not violate freedom of expression when it urged from different instances to remove disinformation messages in relation to Covid or vaccines.
Of course, the government cannot impose its own content moderation policy on social networks or force them to remove one message or another, but the authorities did not find them doing anything similar with their warning messages about misinformation.
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