Key Legal Question for Big Tech Censorship: Do Social Media Platforms Own Your Posts, or Do You?

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If you were barred from the road you take to work, would you care? Thankfully, those who pave our roads aren’t picking and choosing who uses Them, but the same cannot be said of Big Tech. Social media’s expansion into our everyday lives has succeeded in replacing asphalt for algorithm, yet social media platforms are regularly blocking people’s access to the information superhighway by blocking what people can post as well as others’ access to those posts. Every year that our public conversations and debates become more digital, protecting speech online becomes more important.

Under the misleading guise of “content moderation,” social media platforms have engineered a pattern of biased censorship against conservatives. There are obvious examples like Facebook removing satirical Babylon Bee posts or Twitter locking the New York Post’s account for breaking the Hunter Biden laptop story.

Just as perilous are the more hidden manipulations between the users and content, where algorithms and human moderators can shadow ban “undesirable” persons and statements, suppressing others from viewing the content without notifying the authors. Last year’s “Twitter Files” release provided damning evidence of the platform using “visibility filtering” (the company’s code for shadow banning) to punish popular but institutionally disfavored accounts like Libs of TikTok.

Regardless of its form, Big Tech’s prolonged addiction to censorship reveals a market failure. In other industries, the remedy would be competition. If barred from one road on the way to work, why not take another? Due to network effects and myriad anti-competitive practices, a small number of successful social media companies today function as oligopolies, able to work together to throttle your access to all viable roads at their discretion. Twitter bypassed the censorship problem because an eccentric billionaire mortgaged himself for his beliefs. We should not expect more calvary like Elon Musk in the Silicon Valley.

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Thankfully, Texas and Florida had their eyes wide open. These states passed first-of-their-kind laws to establish their citizens’ right to speak online over Big Tech’s right to censor. Texas focused directly on preventing social media bans over political viewpoints. Florida required platforms to publish their censorship rules and to give their users proper notice of changes to those policies, while also giving political candidates immunity from censorship during their campaigns.

Unsurprisingly, Big Tech, represented by industry associations like NetChoice, sued these states to protect their unregulated oligopoly over the digital public square. This yearslong fight is coming to a head with oral arguments scheduled for next month at the Supreme Court. Although NetChoice raised numerous complaints, the court limited the case to only two questions:

  1. Do the laws’ restrictions on Big Tech’s censorship of posts comply with the First Amendment?
  2. Do the laws’ requirements that social media companies provide an explanation for each instance of censorship comply with the First Amendment?

Perhaps the most important assumption in these questions that could decide this case is, whose speech is whose on social media? When Grandma posts on Facebook, does the statement belong to her as the author or to the website as a publisher whose algorithm inserted it into your feed? NetChoice argues that Grandma’s story belongs to Facebook and, therefore, Facebook receives First Amendment rights for choosing to feature or censor her comments through its editorial discretion.

The Heritage Foundation partnered with the Scott Rasmussen National Survey to survey 1,000 American adults, asking them this very question: “Who is primarily responsible for the content of posts on social media sites?”

Sixty-six percent, representing a majority of men, women, the young, the elderly, conservatives, and liberals attributed ownership to “the people who post the content.” Only 27% agreed with NetChoice that posts are actually the platforms speaking to you, with 8% of respondents being uncertain. Public opinion is clear: Grandma speaks for Grandma.

However, even if the vast majority of Americans are incorrect and social media websites can claim your speech as their own to protect their right to censor, these companies are hypocrites every time they invoke what is called Section 230 to protect themselves. This is a 1996 statute meant to shield nascent online platforms from the liabilities of being a publisher. For example, if something illegal was posted on Myspace, the website was protected because it was not Myspace’s speech.

Yet today, Big Tech is telling us that they deserve to have it both ways—that posts on social media are simultaneously the platforms’ (to benefit from First Amendment protections) and not the platforms’ (to benefit from Section 230 protections).

If no other institution, logic, or physical law of the universe has this sort of bold inconsistency, I am skeptical of Big Tech’s entitlement to it. Only last year, Google was in the Supreme Court arguing that YouTube’s targeted recommendations to users were not editorial speech and, therefore, merited Section 230 protections, contradicting this year’s NetChoice legal arguments.

The Fifth Circuit Court of Appeals’ ruling on this case was loud and clear: “Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.”

Big Tech is wrong on the facts and expects Americans to trust them to behave as they engage in doublespeak. Let’s bring them to court.

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