Opinion | Internet speech regulation deserves careful review by Supreme Court


The Supreme Court may be ready to rule on an issue that affects almost every citizen on an almost daily basis, even more so than other wide-ranging issues in its jurisdiction: the Internet. In this way, judges have an opportunity to make a muddled area of ​​governance less murky. You also have a chance to deal great damage along the way.

A divided panel of the US Court of Appeals for the 5th Circuit last week upheld a Texas law that prohibits online platforms from removing user-generated material on their sites based on a user’s point of view or the point of view expressed in a post. Earlier this year, a unanimous panel of the US Circuit Court of Appeals for the 11th Circuit ruled a law in Florida that similarly restricted technology companies violated the First Amendment. Now Florida has asked the Supreme Court to reconsider. If the court agrees to take the case, it will raise questions about governments’ ability to regulate language in the digital age, which both sides have so far approached as an all-or-nothing approach – but that really requires nuance and diligence.

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These two attributes were glaringly absent from the majority opinion of Judge Andrew Oldham NetChoice vs. Paxton, the 5th Federal Court case that denied all First Amendment protections for what most people refer to as content moderation by platforms, but whose author insists on naming censorship. This goes against numerous precedents regarding the right of companies to choose what type of speech they host. Most alarming, however, are the blatant mischaracterizations of social media sites that the Opinion uses to justify this position. Claiming that neo-Nazi and terror material are “frontier hypotheses” ignores the platforms’ documented and ongoing game of targeting a mole with precisely this type of hatred. The claim that sites “exercise virtually no editorial control or judgement” somehow misses the millions of pieces of content they review daily — and the many more algorithmic filters preventing it from even showing.

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This last point is meant to prove that the government can classify platforms like railways or phone providers as “common carriers” and require them not to discriminate. Those on the other side of this debate believe this is the wrong analogy, and it is. But the alternative they propose is equally shaky: they say these platforms are more like newspapers or radio stations. The truth lies somewhere in between. Social media sites act as a kind of public utility; They also exercise the editorial control and judgment essential to the value they provide. They exist in a category of their own, and no court has yet figured out what standard should apply to them — or what types of language regimes, from the extreme restrictions in Texas and Florida to more moderate transparency mandates being considered elsewhere to nothing anything the constitution allows.

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The Supreme Court seems to be thinking like never before in the near future. If so, judges should resist the temptation of seemingly simple answers that miss the most challenging realities of the digital age.

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