Image Credits: @dole777 on Unsplash (Unsplash License)
Introduction
Social media has become ubiquitous and is now the primary news source for American citizens, especially political news among young people. There are multiple cases about this topic with First Amendment protections on the Supreme Court docket for the 2023-24 term. Two of these cases, Moody v. NetChoice and Lindke v. Freed, focus on the harms of censorship and how it can affect information on social media. Moody focuses on censorship by a social media organization, while Lindke focuses on censorship by a government official. If the Court legally allows this information to be manipulated, it would be exceptionally dangerous for the American public. Understanding these cases and their impact can help us grasp how their ruling might impact us in the near future.
The First Amendment
As a part of the U.S. Constitution, the First Amendment protects citizens’ freedom of speech in verbal and written forms. With the rise of technology, the interpretation of the First Amendment has changed slightly but the themes of free speech remain the same. Today, free speech is protected on the Internet as it always has been in print mediums. However, because the Internet has no barriers to entry, it gives everyone an equal platform to speak on issues.
The First Amendment also includes the right to protest and speak out against the government, which the Supreme Court has affirmed on multiple occasions. It further clarifies that if the government attempts to silence anti-American speech, they are directly disobeying the Constitution. The right to protest the government is fundamental to democracy because a democratic government gets its right to rule from the people. If the people disagree with the government’s rule, they should have the power to change it.
What is Censorship?
In legal terms, censorship occurs when any party attempts to restrict another party’s freedom of speech by changing or blocking a message. The government is rarely able to censor content without severe restrictions. In contrast, if an individual engages in censorship, such as boycotting, it is usually protected by the First Amendment.
As summarized by the American Civil Liberties Union (ACLU), there are two main prongs that the Court must use to determine whether censorship is constitutional: content neutrality and potential harm. A censorship law does not maintain content neutrality if the organization censors language only because it disagrees with the content and cannot provide another reason.
The other legal prong for censorship is harm to society, which includes information intentionally manipulated to be harmful. This definition is also known as the “clear and present danger test,” first established in Schenck v. United States, where the Court ruled that speech is not protected if it presents a clear and present danger to society. In general discussion, this rule is usually referenced as yelling “fire” in a crowded theater, which would cause mass panic. However, the moral judgment changes based on whether there is a fire in that theater, potentially complicating the situation.
Censorship in the Modern Age
Before the 2000s, most censorship cases involved news organizations and political journals, especially during wartime. For example, in the 1997 case New York Times Company v. United States, the Court ruled that the government could not censor classified parts of the Pentagon Papers before the New York Times published them. This case tested the limits of prior restraint, or when the government attempts to edit pieces of information before it is published because it may harm society if released to the public.
With the rise of social media, false information and hate speech can circulate freely without censorship restrictions. This is particularly dangerous when placed in the hands of politicians because they have authority in society, and citizens often look to their social media profiles for their thoughts on current events. Therefore, organizations sometimes have to monitor posts and delete any that they believe may be harmful, as is explored in these cases.
Summaries of the Cases
The first case, Moody v. NetChoice, presents a situation in which the government attempts to control who can censor information. In Florida, the state Senate passed SB7072, which prevents social media companies from excessively blocking content. Under the new law, a company cannot ban a person from their platform entirely, and they must disclose when they are hiding content from users. After signing, Florida Governor Ron DeSantis claimed the bill would “guarantee [Floridians] protection against the Silicon Valley elites.” DeSantis also claimed that “Big Tech” was attacking certain ideologies supported by the people of Florida and attempting to influence Floridan elections.
In response, a social media advocacy organization called NetChoice sued the Florida officials representing the bill. It claimed the legislation violates a company’s right to free speech under the First Amendment. NetChoice’s logic is that the bill works as reverse censorship: speaking out against disinformation is an act of free speech, so censoring must also be protected. By preventing censorship, the government is overstepping and attempting to silence voices that may want to speak out against dangerous content.
Lindke v. Freed also deals with censorship, but from the opposite angle and on a smaller scale. Freed is a current city manager who initially created a private social media account. When he was elected, that account became public. Government officials must treat their social media with respect because, as aforementioned, their constituents often look to their social media accounts to learn the officials’ views on current events. Freed did not treat his account respectfully; he deleted comments he disagreed with and even blocked others. One commenter, Lindke, sued Freed for his censorship, claiming that Freed, as an extension of the government, attempted to restrict his free speech.
Possible Outcomes of Moody
The Court will likely strike down Florida’s censorship law as it does not comply with the First Amendment. The Act has a long list of bans on what a corporation cannot do, and the prohibitions combined essentially take away any freedom of speech that a company may have. In addition, the Florida legislature passed the bill to counter instances of “Silicon Valley” companies attempting to silence conservative candidates and having a say in elections. However, these social media companies have never stated that they are attempting to influence an election or other political event—they simply want to stop the spread of misinformation on their platforms.
SB7072’s primary issue is that it fails content neutrality. The Florida officials supporting the bill have stated that they are attempting to safeguard against companies banning conservative voices on their platforms, specifically, candidates using the platform to run for office. This action violates neutrality because Florida wants to prevent an action it disagrees with. Additionally, the Florida Elections Commission enforces violations of the bill, once again proving that there is a clear motivation behind the bill.
In previous cases, the journalism organization attempted to protect itself from censorship by the US government, not vice versa. In Moody, however, NetChoice is trying to censor content, and the Florida bill prevents them from doing so. The Court has a limited precedent for this instance, as bills that attempt to avoid censorship are rare in legal history. This nuance makes the case exciting but challenging to solve. They present a compelling argument from both sides, and the case’s outcome will significantly affect how companies like Instagram can censor content in the future.
Possible Outcomes of Lindke
Lindke v. Freed operates on a much smaller scale but is no less critical. Lindke is a case study in which a politician attempted to silence a protestor on a very public platform. The main reason why Freed violated the law is because he is a public figure representing his political policies (job) on his social media account. This is known as “state action” and would be the primary reason the Court may rule with Lindke on this case.
As described in the case brief, the Court has adopted the “state-official test” to determine whether a government figure acted out of state interest. Essentially, a public figure does not always work in their government role, and the test helps determine whether or not an official’s action should be judged as such. However, Lindke, like other public figures, used his social media account for official business and personal reasons, so the line between official duties and his personal life blurred. This diverts from the norm of government officials creating a separate account of their official duties to separate it from their personal lives.
The main reason why Lindke would win the case is that when Freed blocked him, he was responding to a comment Lindke made about an official government decision regarding the COVID-19 pandemic. In his post, Freed was referring to one of the policies he had recently enacted and that Lindke clearly disagreed with. By blocking Lindke from commenting further, Freed was attempting to stop him from protesting, which would be violating his First Amendment rights. Additionally, Freed’s censorship does not pass those legal tests regarding content neutrality. He only attempted to censor the comment because he disagreed.
However, the lower Court’s opinion claimed that the government should look at the account as a whole, not as one individual post. In his opinion, the Circuit Judge argued that a government account is government property. All actions done on that account are “state action,” similar to how any act done in an administrator’s office is state action. Since Freed’s account is still personal, it is not government property, and Freed’s actions do not constitute state action. Therefore, it would be constitutional for Freed to “block” Lindke.
Why These Cases Matter
Today, a significant part of the American public uses social media as their primary form of news, especially political. Without safeguards against misinformation, the American constituency is using manipulated information when making political and social decisions. In the long run, this is detrimental to our democracy.
However, if companies are given too much power over censorship, they may cross a line and start incorporating their views into censorship, as is alleged in the Moody case. Censorship is itself a form of speech, and if there are no restrictions on it, parties will start to influence elections in far more dangerous ways than a couple of posts of misinformation could.
Moody v. NetChoice and Lindke v. Freed both raise questions about the proper role of censorship in the digital age. They force lawyers to ask what the limits of censorship are and how censorship may ultimately benefit or harm a community. From a legal perspective, the age of social media is just beginning. The ruling on these cases will determine how citizens will be allowed to engage with social media in the future, and it will challenge Americans’ perception of free speech today.