Q: Have social media companies gone too far in censoring what some consider free speech?


That depends on whom you ask, but a lot of U.S. adults think so, according to a new poll by Pew Research. More than 90 percent of conservative Republicans believe social media companies are censoring political views they find objectionable. They point to Twitter’s ban of former President Donald Trump after the U.S. Capitol riot and the de-platforming of right-wing celebrities like Alex Jones. Those with more liberal leanings agree it’s likely but to a lesser extent.

Both groups support more regulation of these tech giants but for different reasons. Democrats want to hold them accountable for the misinformation and right-wing conspiracy theories flourishing on their platforms, while Republicans want to make it illegal to censor or ban people because of their political views.

Legislators in Texas and Florida see online censorship as the problem and passed new laws that make it illegal in their states. Both laws have been challenged in court on First Amendment grounds, and the Supreme Court will probably have the final say on this issue.

In Texas, it all started with a law known as HB 20 that forbids platforms with more than 50 million users from discriminating against people based on their viewpoints or political ideology. While this case, NetChoice v. Paxton, worked its way through state and federal courts, social media companies were granted an injunction to block the law because it effectively forced them to publish what they consider harmful content.

The US Court of Appeals for the 5th Circuit has now upheld the Texas law in what some legal experts call “an astonishing opinion… that effectively puts Texas Republicans in charge of major social media platforms such as Twitter, Facebook, and YouTube” and “legally bonkers.”

Meanwhile, in Florida, a similar law banning social media censorship has been blocked by the 11th Circuit Court of Appeals for violating the First Amendment rights of social media companies. When two circuit courts disagree like this, it’s very likely that the Supreme Court will weigh in. In fact, lawyers representing the state of Florida have already petitioned the high court to rule on whether social media companies are silencing protected speech.

If the Supreme Court decides to hear this case, it could be a landmark decision with far-reaching consequences. Like it or not, these social media platforms are an important public forum–the modern public square– where people share news and voice opinions, with one big difference: They are private companies.

That’s an important distinction, according to legal scholars. The First Amendment only protects speech from government censorship. It does not protect people from other forms of censorship. Under long-established court precedent and Section 230 of the Communications Decency Act, these scholars say private companies have the right, in fact, the obligation to moderate their content. That means they cannot be forced to host speech they find objectionable.  

Tech giants have built their platforms on that legal bedrock and consider the Texas law, and others like it, existential threats to their business—and democracy. “Forcing private companies to give equal treatment to all viewpoints on their platforms places foreign propaganda and extremism on equal footing with decent Internet users and places Americans at risk,” said Matt Schruers, president of the Computer & Communications Industry Association (CCIA), which is a plaintiff in the case.
Schruers also said if this ruling stands, it will allow the government to tell private companies what they must publish, adding “there’s nothing more Orwellian than having the government demand that certain viewpoints are distributed in the name of free expression.”

The 5th Circuit Court of Appeals rejects that interpretation and views these platforms more like telephone companies than newspapers because they provide essential services. In a 90-page opinion, Judge Andrew Stephen Oldham (left) said that HB 20 protects “the free exchange of ideas and information in the state.”

He also insists that social media companies do not have the right to censor what people say. “The Texas law does not chill speech; if anything, it chills censorship,” said Oldham, a Trump nominee and former law clerk to Justice Samuel Alito.

The social media companies are in a tough spot, but they have several options before the Texas law takes effect. They could decide to comply and stop moderating all content for Texas users, which would flood their platforms with even more misinformation, conspiracy theories, and hate speech. They could also stop doing business in Texas and “geoblock” everyone living there to avoid violating the statute.

As for legal remedies, they can request a rehearing by the full Circuit Court or appeal the 5th Circuit’s decision to the Supreme Court in what would be a blockbuster case, no matter what the justices decide.