Supreme Court Debates Site Moderation vs Censorship

Two state laws governing the way social media companies moderate content could be under threat. Questioning by Justices in a Supreme Court cases suggested they may not be convinced the laws are constitutional.

The case, examining laws in Florida and Texas, covers one of the most longstanding dilemmas of the Internet age: whether website owners are publishers or a platform. This affects questions such as whether the site owner is responsible for defamation or other breaches of the law involving content, plus the extent to which the First Amendment applies.

In this case, both states brought in laws which restrict the ability of sites to moderate content, for example on political grounds, or to block or remove users who violate their rules. Both laws were put on hold by lower courts.

First Amendment Issues

The argument against the law's constitutionality is that if it stops sites moderating user content, it effectively means government is forcing the sites to publish content against their will.

The questioning by the Justices in the Supreme Court hearing suggests several agree with the logic that government telling organizations they must publish something is as much a violation of the First Amendment as banning them from publishing something. (Source: scotusblog.com)

The case certainly isn't cut and dried, however. For example, the Justices and lawyers discussed the term "content moderation" and whether it was a "euphemism for censorship."

The Justices also explored whether the two state laws were too broadly written and might have unintended consequences. One hypothetical was that in the broadest reading of the laws, sites such as Etsy might be barred from using algorithms to decide which products to show to users most prominently.

Legal Holdups

Although the questioning suggested its unlikely the Justice will rule that the laws are completely fine, the ruling may not be clear-cut. The process by which the laws wound up in the Supreme Court means the Justices might have to make an all-or-nothing ruling in which they either uphold the laws or throw them out completely as if they'd never been written.

Several Justices indicated they'd be uneasy about doing this and would prefer a more nuanced approach that allowed states to limit only specific forms of moderation in specific circumstances. That might mean they had to rule the laws are constitutional for now, leaving opponents to restart the process with more focused legal challenges. (Source: vox.com)

What's Your Opinion?

Should websites have the right to moderate content? Do you think forcing a website to post user content it would prefer to remove violates the First Amendment? Is this a fundamental constitutional question or something that should be left to state laws?