In Social Media We Trust—Right, Mr. Musk?
As you’ve likely heard by now, Twitter has had a rough past few weeks—and maybe that’s putting it mildly. A self-proclaimed “free speech absolutist,”[1] Elon Musk finalized the $44 billion purchase of the social media platform just weeks ago and suggested he will relax Twitter’s content-moderation rules, even reinstating some users who have been banned.[2] And yes—that likely includes former President Trump who was barred from the platform following the January 6 insurrection at the U.S. Capitol.[3]
Musk immediately began offering Twitter users the option of obtaining official verification (you know, the oh-so coveted blue check mark beside a user’s name) for the nominal fee of $8 a month.[4] Power to the people, right? Well, it only took a matter of days for Twitter to become a “messy swirl of accounts pretending to be high-profile brands and sending disruptive tweets.”[5] One of those pretenders was comedian Kathy Griffin, impersonating the “chief twit” himself.[6] Griffin was subsequently barred from the service and Musk was quick to announce that he would suspend any account “engaging in impersonation without clearly specifying ‘parody.’”[7]
Undoubtably, platforms like Twitter, which boasts more than 240 million users,[8] can be an indispensable tool for political and social justice movements around the world, particularly in “highly controlled societies like Saudi Arabia.”[9] But with that power for good comes the potential for abuse. Voting-related misinformation and conspiracies were proliferating on Twitter and other platforms leading up to Election Day this past Tuesday.[10] Additionally, and due in no small part to Twitter’s verification snafu, immediate commercial side effects were experienced when one account posed as Eli Lilly, tweeting “that the pharmaceutical company would provide free insulin to its customers.”[11] Eli Lilly’s stock fell more than 4 percent that day.[12]
Twitter has since stated “it would re-introduce a gray ‘Official’ badge for select accounts to help confirm their identities”[13] and that a ‘Parody’ label must be added to accounts engaging in impersonation or else they’d face suspension.[14] At the risk of sounding overly optimistic, perhaps Musk is beginning to understand the importance of editorial judgement and First Amendment protections exercised by social media platforms in limiting certain forms of speech and misinformation.
“Tech companies argue that the First Amendment… protects their right to set their own rules for their platforms—including barring speech that isn’t necessarily illegal but is harmful, like misinformation about elections or COVID vaccines.”[15] But what happens when a state government gets into the ring, feeling, similar to Musk back in May,[16] that the social media giants are using this discretion to silence the political right? Enter Florida and Texas.
In 2021, the State of Florida enacted S.B. 7072 “to combat what some of its proponents perceive to be a concerted effort by the big tech oligarchs in Silicon Valley to silence conservative speech in favor of a radical leftist agenda.”[17] “[T]he new law would, among other things, prohibit certain social-media companies from ‘deplatforming’ political candidates under any circumstances, prioritizing or deprioritizing any post or message ‘by or about’ a candidate, and, more broadly, removing anything posted by a ‘journalistic enterprise’ based on its content.”[18] A similar law, H.B. 20, was passed in Texas that same year, which would “generally prohibit[] large social media platforms from censoring speech based on the viewpoint of its speaker.”[19] Both laws were quickly challenged in court.
On appeal, the Eleventh Circuit in NetChoice, LLC v. Att’y Gen., Fla. ruled that social media companies were entitled to preliminary injunction, prohibiting the enforcement of a majority of S.B. 7072’s provisions.[20] The court recognized that social media platforms operate as private actors with First Amendment rights, and that their content-moderation and curation decisions fall within the protected exercise of editorial judgment.[21] It further explained that “[w]hen platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction breaches of their community standards, they engage in First-Amendment-protected activity.”[22]
The State of Florida attempted to defend its law by arguing that, given “[l]arge social-media platforms are clothed with a ‘public trust’ and have ‘substantial market power,’ they … should be treated like[] common carriers” with diminished First Amendment rights.[23] The Eleventh Circuit rejected this rejoinder, noting that, unlike common carriers, social-media platforms serve the public on a discriminate basis by exercising its “editorial judgement to curate the content that they display and disseminate.”[24] It added that a private actor doesn’t lose “its [First Amendment] rights just because it succeeds in the marketplace and hits its big.”[25]
Roughly four months after the NetChoice, LLC v. Att’y Gen., Fla. decision, the Fifth Circuit arrived at the opposite conclusion regarding the similar H.B. 20.[26] In NetChoice, LLC v. Paxton, the Fifth Circuit plainly disagreed with the Eleventh Circuit on several critical points leading it to uphold the Texas law.[27] For one, the Fifth Circuit held that unlike newspapers, social media platforms fail to exercise any real editorial judgment, nor do they make a collective point in their content like a parade organizer might, rendering the platforms unfit for a First Amendment editorial judgement protections.[28] The Fifth Circuit further deviated from its sister court in finding that the social media platforms in question were of a common carrier type, and thus, fit for a state’s imposition of nondiscrimination obligations in its content.[29] The court underscored the “[n]umerous members of the public [who] depend on social media platforms” and see such platforms as the “modern public square[.]”[30]
Given the circuit split, it is likely these cases will find themselves before the Supreme Court soon enough.[31] Should the Court side with the Fifth Circuit on this issue, social media companies will be faced with an uphill battle as they navigate various state laws and potential penalties associated with removing too much content.[32]
In the meantime, and in light of the recent Twitter chaos, one is left wondering: did Musk find the world of unfettered tweeting as idyllic as he thought it might be? Well, one can surmise that, at least when it comes to parodies orchestrated by Kathy Griffin, Musk isn’t such a fan.
Footnotes
