Supreme Court Confronts Social Media Chaos: Laws, Tech and a Struggle for Clarity
Two linked U.S. Supreme Court hearings on Monday to hear a challenge to laws in Florida and Texas about social media moderation were an exercise in futility in trying to match rules to practices.
Indeed, at times, listening to the hearing was akin to seeing bodies bouncing randomly through the forest, bumping into trees and one another in search of a path.
Part of the problem was that the two states adopted ill-written, overly broad laws seeking to control what social media publishes and to punish Big Tech companies for blocking some politically tinged speech when it runs afoul of misinformation standards or hate speech. Of course, part of the problem lies at the feet of Big Tech companies themselves who say one thing about content moderation but allow profit motives to push actions of a wholly different sort.
At times, justices had trouble deciding just what issues were up for grabs, whether they were facing a major statement about free speech, online speech or a chance to spank the lawyers in the previous courts for failing to lay out exactly what issue wants to be resolved.
Listeners could wonder whether it was the justices who simply did not know how to talk about technology, as we have seen in Congress, or whether technology is so changing that any rule good today will be outdated next week. In any case, justices were constrained by the questions brought by the appeal rather than a clean slate for legislators.
As New York Times reporter Jim Rutenberg noted in a comment during the hearing, “If there’s one thing you can take away from today’s arguments it’s that even after the quarter-century since the internet became a major force in American life, the U.S. legal and political structures still don’t quite know how to handle its thornier aspects. The world that came to be in the analog era of electronic media doesn’t have a unified legal theory or even quite the language with which to discuss it.”
The Cases
What gave rise to these two linked cases were complaints from right-wing politicians in Florida and Texas about how large tech companies “curate” or edit what appears on their platform in the name of social responsibility.
They see censorship — by private companies rather than by the government — against the ability to rail against vaccines, for example: use hate speech or promote alternative if conspiratorial Jan. 6 explanations. As a result, they passed laws to bar those companies, who were never identified, from enforcing their own complicated consumer agreement rules.
One example: Donald Trump was banned by Twitter, for example, over his repeated insistence on posting election fraud claims that had been found again and again to be without evidence. After a lot of public pressure, the media companies acted — only later to rescind the decisions.
At specific contention this week were contradictory court orders over preliminary injunctions sought by Net Choice and technology companies to keep the states from enforcing those laws.
Of course, Big Tech relies on federal shields from liability for whatever they post, arguing that they are more like the telephone company than newspapers, which do face liability. But then Big Tech also wants to be seen as responsible “editors” who have some control over what appears in their channels. Over time, Big Tech has had to defend itself repeatedly for using computer logic that automates the distribution of the most controversial posts in the name of building traffic.
What became clear during the court hearing were the wide gaps in the laws that got passed. As written, the justices easily saw how bars, bans and controls could be extended to apply to companies like Uber, Google searches and email, or to Amazon, and how much the language around decision-making about what can or cannot appear on social media posts is elusive. There were arguments about what constitutes “censorship” rather than “moderation,” or whether Facebook should block children from seeing posts about swallowing Tide-pod soap capsules as a fad.
It was a discussion that ran in multiple directions, leaving everyone scratching their heads about values, law, and what exactly was under discussion.
Too Complex for Easy Resolution
In the end, no one knows what kind of a decision the justice will write, though there was plenty of ammunition present in the questioning to believe that the state laws will not survive in full. That too was a question, because of the nature of the legal arguments that reached the justices. The specific type of appeal sought an all-or-nothing upholding or unconstitutional finding about the state laws.
The bigger picture here, though, is a serious warning to our lawmakers who increasingly seem to be acting out of political pique rather than as a result of serious preparation. Being angry that conservative voices are being dimmed was enough reason for two states to enact laws, different from each other, that are poorly defined.
That’s exactly how we ended up with the Alabama Supreme Court decision last week stretching pro-life thinking to frozen embryos, or the myriad decisions about technical aspects of immigration law that leave us dealing with what many see as unenforceable borders.
You can see it unfolding anew with a Florida bill that seeks to prohibit those under 16 from having social media accounts, as if prohibition for teens works — and without thinking through where other online activities may want child involvement in education, for example.
The big picture also says we have no idea how to regulate technology, whether in communications policy as in these cases, in the developments already running well ahead of law involving Artificial Intelligence or advanced medicine that is now experimenting with brain adjustments.
One would think that the Supreme Court exists because too many questions arise that cannot be anticipated at the time of passing our laws. But passing laws just to promote political partisanship is a guarantee that we will see lots more such mismatches.