SCOTUS Addresses the Role of Social Media and its Governance in 2024
As the influence of social media continues to pervade our social and public institutions, the relationship between the government and these platforms grows in importance. A legal issue that will play a primary role in the nature of this relationship going forward is the classification of these platforms as either “common carriers” or “publishers” in the context of constitutional law. This determination dramatically affects the agency with which social media platforms can moderate content on their platforms and the ability of states to regulate that agency. Following substantial splits in lower courts, this controversial classification and its First Amendment implications are now before the Supreme Court of the United States in Moody v. NetChoice and NetChoice v. Paxton.
A “common carrier” is an entity that “holds itself out” to the public by waiving its prerogative to exercise moderative discretion and opting instead to provide uniform services and facilities to all users without individualized treatment. Classification of social media platforms as such entities implicates their role as public forums in which freedom of speech and expression are of great salience. Advocating for this position, states including Florida and Texas have implemented sweeping statutes creating legal causes of action for individuals and political candidates who feel that they were unfairly blocked from posting content on prominent social media platforms. This manifests a prioritization of the First Amendment rights of individual users over the same rights of affected platforms in line with the ubiquity of their use and their importance as mediums of communication and expression. This categorization is further bolstered by Section 230 of the 1996 Communications Decency Act, which shields social media platforms from legal liability for harmful content posted by users, reflecting their role as conduits.
Many have found issue with this classification of social media platforms as “common carriers,” arguing that the matter is best addressed under a framework closer to that used for “publishers.” A “publisher” is an entity that exercises extensive “editorial control” over the content that it makes available, placing it in the position to moderate that content and dictate what can and cannot be published without regulation. Placing social media platforms under this umbrella has been justified based on the private essence of these sites, their right to establish terms of use, and a compelling interest in moderating harmful content. Moreover, the very same Section 230 of the 1996 Communications Decency Act cited in support of the alternative argument also advances this categorization by allowing online companies to remove content they deem objectionable without legal liability as long as that removal is done in good faith. This view implicates a fundamentally different conceptualization of the First Amendment’s applicability to the matter, finding state regulation precluding moderation improper based on the way that it coerces social media sites into allowing certain content to be published on their platform against their will.
However, it seems that resolving this issue will not be as straightforward as placing social media platforms into one of these two bins despite the appeal of such a settled doctrine. Several Justices point to the wide variety of functions and qualities that these sites exhibit, demonstrating the need for a more nuanced solution that diverges from the “publisher-common carrier” dichotomy and properly addresses the distinction between expression and mere personal correspondence in a way that the state statutes in controversy fail to accomplish. Showing skepticism towards the position of social media platforms, other members of the Court have expressed concerns about a presumption of unconstitutionality for regulations of moderative or “editorial discretion” as a threat to the First Amendment.
In light of the polarity of the positions of the parties to the dispute in addition to varying conceptualizations of the First Amendment, it is unclear where exactly the Supreme Court will fall in its evaluation of the propriety of state regulation of social media platforms and content moderation. What is clear is that the Court is skeptical of both one-dimensional, sweeping statutes that provide states broad authority to regulate these platforms and their private policies as well as unconstrained control over content at the whim of social media magnates. These cases are just one step in a continuing process of determining the bounds and limitations of the relationship between social media and the government. Their disposition will be of great importance in defining the nature of an integral part of our lives that informs our decisions, facilitates communication and expression, and catalyzes meaningful change.