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The Supreme Court Should Uphold Social Media Laws Of Texas And Florida

Can technology companies both assert that they are entitled to Section 230 protections but also say that they engage in "editorial discretion and expressive conduct?" 

The United States Supreme Court heard four hours of oral arguments on Monday to decide whether laws passed by Texas and Florida requiring social media companies, like Facebook, YouTube, X, TikTok, Reddit, and Instagram, not to stifle conservative speech are constitutional. 

At issue are deep, constitutional provisions, about the rights of various parties, never before adjudicated at the Supreme Court. 

The first right is that of the various social media platforms like Facebook, Twitter, YouTube, Reddit, TikTok, Instagram, and others. Each is a private for-profit company entitled to adopt terms of service, conditions, and rules that it sees fit. Defining these rules is a First Amendment right of these private platforms. Subscribers are at liberty to not sign up, but if they do, they agree to the terms of service. 

Then, there are also First Amendment rights for those participating on these platforms. Who should prevail if a conservative voices an opinion not within a platform's safety and trust policies?

The Biden administration is also a party in the case, supporting the technology platforms that have been doing the Democrats' bidding by restricting conservative voices. 

Texas and Florida, both run by conservative Republican governors, passed two separate pieces of legislation and signed them into law. Both state that the platforms are forbidden to operate in their vast states if the platforms limit conservative speech. In Florida, the rule is even more aggressive. No candidate running for office, any office in Florida, can have their account suspended on any of these platforms. This rule was an apparent response to how all the platforms suspended former president Trump's account after January 6, justifying their moves by saying that Trump's speech was dangerous and could harm people. Both laws allow the states to impose fines and penalties on the platforms if they are deemed to have violated the rules. 

The technology companies argued that the speech on their platform was similar to that in a newspaper. When a reader comments on an article or writes a letter to the editor, his viewpoints are first scrutinized by a staffer who will verify that the comments are permissible. The technology platforms maintained that their safety and trust committees perform tasks similar to the bouncer on a radio show by engaging in "editorial discretion and expressive conduct."

But this comparison is grossly misleading on two counts. First, a platform like Facebook doesn't create content; it only curates it after sourcing it from other organizations. Further, all non-sourced content on the technology platforms - the vast majority of content - depends upon text, photos, and videos uploaded by subscribers. In a sense, a technology platform is more like a "conduit" - where it merely serves to host speech and content created by others. In this situation, how can the technology companies assert that they engage in editorial discretion and expressive conduct?

Second, Congress considered the "conduit" nature of the platforms' business when it granted them relief under Section 230

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" (47 U.S.C. § 230).

For those who find the above text too cryptic, the Electronic Frontier Foundation comes to the rescue: Online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. In other words, social media outlets such as Google, Facebook, YouTube, and Twitter are not lawfully liable even if someone using these platforms in some manner plans and delivers bodily injury to someone else.

So, how can technology companies both assert that they are entitled to Section 230 protections but also say that they engage in "editorial discretion and expressive conduct?" 

Indeed, Justice Clarence Thomas quizzed the technology companies on this very point.

JUSTICE THOMAS: And the argument under Section 230 has been that you're merely a conduit ...Now you're saying that you are engaged in editorial discretion and expressive conduct. Doesn't that seem to undermine your Section 230 arguments? 

MR. CLEMENT (speaking for the technology companies): ...My understanding is that my clients have consistently taken the position that they are not mere conduits. 

So desperate are the technology platforms that they are willing to sacrifice Section 230 protections so that they can censor speech with which they disagree. 

But thanks to Elon Musk, the Supreme Court now knows what a vibrant social media platform can do to citizen debate. All views are now permitted on X, formally Twitter, without prejudice or bias. Musk's definition of free speech is to allow someone we don't like to say something we don't like, as long as what is said is legal. For instance, advocating for terrorism is illegal, so it shouldn't be permitted. The remedy for wrong speech is not censorship but more right speech - a concept Musk has implemented through "Community Notes," when the original post stays and experts who disagree with the author provide information that users can see for themselves. 

The platforms' assertion that they engage in editorial discretion and expressive conduct is nonsense. Henry Whitaker, the Solicitor General of Florida, made a point:

We certainly agree that a newspaper, book, and bookstore engage in inherently expressive conduct. And our whole point is that these social media platforms are not like those.

Florida's and Texas's laws do not regulate free speech on the platforms but mandate that all speech should be permitted without bias. The subscribers' First Amendment rights should trump the platforms' First Amendment rights because the technology platforms do not originate content like newspapers or books. 

The Supreme Court has a golden opportunity to elevate technology platforms to Musk's high bar of free speech. The Court should uphold the Florida and Texas laws and help restore vibrant debate to the modern public square on all platforms. Like X did.

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