The battle over content moderation and free speech is raging on. However, as states attempt to take the reins, proposed legislation runs afoul of existing law. Florida and Texas are two examples of flawed legislation as they undermine Section 230 and assume undue power over the internet.
Following controversy over whether social media platforms unfairly targeted certain political viewpoints, Texas and Florida passed laws forbidding social media websites from removing posts or banning users for political speech.
NetChoice filed lawsuits against the bills, first NetChoice & CCIA vs. Moody in Florida and then NetChoice & CCIA v. Paxton in Texas. In both cases, NetChoice’s key argument is that by forcing social media websites to publish content they find unacceptable the states are violating the First Amendment rights of the platforms rather than protecting the free speech rights of users.
Arguments that these laws limit the First Amendment are strengthened by a recent ruling on another controversial Texas internet law. This law requires age verification and warnings before accessing adult websites, the court found that such a requirement amounts to compelled speech which is unconstitutional.
One case cited, Volokh v. James, specifically dealt with platforms’ rights to moderate. In this case, a law demanded platforms provide a mechanism to report hateful speech as well as post the process by which content was moderated. The court ruled that making this requirement constituted compelled speech as it required them to disclose what protected speech they would and would not allow. With this precedent, laws forcing large social media companies to publish all political speech on their platforms are likely to fail in court.
In addition to free speech concerns, Texas and Florida legislation seeks to take the ability to self-regulate away from major social media platforms by prohibiting moderating content based on viewpoint. Critics have pointed out that making platforms host all speech regardless of viewpoint opens the door to them being forced to host speech well outside what is the political norm.
Not only is controversial content protected from government infringement, but curating content is also a key component of modern social media. Taking away platforms’ ability to police themselves and avoid driving away their users by allowing offensive or otherwise troubling content makes these platforms less safe. These laws undermine what allowed the Internet to flourish in the first place.
While the question of how political social media content should be moderated is a multifaceted one, forced speech by the government is not the way to go. States assuming new powers based on questionable assumptions and blanket laws will likely do more harm than good.
Trey Price is a technology policy analyst for the American Consumer Institute, a nonprofit education and research organization. For more information, visit https://www.theamericanconsumer.org/ or follow us on Twitter @ConsumerPal.