Social media has ubiquitously become a major focus of political discourse in the United States. Over the last few years, different levels of government have created different rules, sometimes contradictory, for social media. Contradicting regulations would make it all but impossible for social media companies to remain compliant.
In 2021, Texas and Florida passed laws that prohibit social media companies from engaging in what they believe to be rampant viewpoint discrimination against conservative voices by restricting companies’ ability to deplatform political candidates and moderate political speech.
However, the organization Netchoice has since sued both states, in Netchoice v. Moody for Florida and Netchoice v. Paxton for Texas, arguing that these laws are essentially the government attempting to dictate to social media companies how they must moderate their platforms. Both cases are currently now before the Supreme Court.
Unfortunately, written law is not the only way governments can exert pressure on social media companies. Elected officials also try to informally pressure private companies to do things that would ordinarily run afoul of the First Amendment, in a practice known as jawboning. This is what allegedly happened at the federal level in Murthy v. Missouri.
Jawboning social media platforms at the federal level became an issue during the COVID-19 pandemic as the White House searched for ways to curtail what they saw as misinformation regarding the pandemic and vaccines on social media. The Biden administration demanded social media companies do more to fight misinformation and ban problematic users from their platforms. It even went so far as to threaten revising Section 230 which gives platforms protection both from content posted by their users and from moderating content on their platforms. if they did not comply. According to the lawsuit, the Biden administration tried to get around first amendment protections by coercing companies. While not all appeals by government are problematic or constitute jawboning, the regulatory threat could be seen to cross the legal line.
As government gets involved in how social media companies moderate content on their platforms, contradictions begin to emerge. The Florida and Texas laws both attempt to regulate how platforms can moderate political speech and require more transparency in how their algorithms operate. Both attempt to limit what social media companies can do to moderate, whether through outright censorship or through indirect methods.
While state governments have been attempting to restrain how platforms can moderate, the federal government has been pushing these same platforms to do more to counter misinformation. The Biden administration’s push on social media companies with the threat of Section 230 revisions creates pressure for companies to engage in censorship and deplatforming of specific speech. The same actions that state laws such as the ones in Texas and Florida wanted to curtail.
These competing priorities create a legal minefield for social media platforms. When different levels of government create different rules, it becomes very difficult for companies to operate. Who are these companies expected to listen to when rules are contradictory? Does a company risk getting sued for violating a state law or risk losing federal protections critical to their operations? Governments that regulate online speech to further their political goals leave social media companies with an impossible choice.
Navigating the maze of government regulations is difficult enough; contradicting regulations only further complicates it. Eliminating these contradictions would create a more amicable business environment for companies and a healthier social media landscape.
Trey Price is a policy analyst with the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit us at www.TheAmericanConsumer.Org or follow us on X @ConsumerPal.