By Grace Zheng (PO ’26)
With social media platforms transforming the way information is disseminated, there is no doubt that the internet has given rise to a new era for free speech. However, as these platforms grow in prominence, so have concerns about their influence in the political sphere. In particular, a recent legal battle around Senate Bill 7072 in Florida on social media has significant implications for the ability of companies to regulate the content that they host and correspondingly, speech on the internet.
Lawyers in Florida recently appealed to the Supreme Court, asking them to overturn a decision by the US Court of Appeals for the Eleventh Circuit that ruled that social media platforms had the right to prohibit political candidates from their platform. The bill S.B. 7072 was originally signed into law in May of 2021 and it restricts platforms’ ability to moderate content by making it illegal to deplatform (temporarily or permanently delete or ban) political candidates. Under S.B. 7072, companies that violate this risk face a fine of $250,000 per day for deplatforming a statewide candidate and $25,000 for any other candidates.
The debate over free speech on social media is by no means a new one — for as long as the internet has existed, there have been debates around what can or should be censored online. In the 1997 landmark case Reno v. American Civil Liberties Union, a unanimous Supreme Court extended the First Amendment to all forms of expression posted on the internet, effectively protecting users’ freedom of speech.
In addition to highlighting concerns with free speech, Florida Governor Ron DeSantis specifically cited big tech’s preference to “discriminate in favor of the dominant Silicon Valley ideology” as one of the key reasons behind S.B. 7072. This is accompanied by concerns that social media platforms systematically discriminate against conservative politicians and ideology. Although parts of S.B. 7072 do focus on general policies, such as requiring social media companies to be more transparent with their standards for censoring users, it also speaks directly to the likes of Facebook and Twitter for their decision to ban Donald Trump from their platforms when he was still President. Both platforms banned Trump for his comments in support of rioters who stormed the US Capitol on January 6th, 2021, and they have also deleted or tagged his posts that contained inaccuracies about COVID-19 and mail-in-voting. These interactions have no doubt set the precedent for the ability of social media companies to regulate the content of users, even when facing someone as powerful as the US president.
NetChoice, a consortium of tech industry giants, such as Google and Meta, challenged S.B. 7072 and the US Court of Appeals for the Eleventh Circuit agreed. Instead of arguing that it is unconstitutional to exclude politicians from social media platforms, the Court stated that “when a platform removes or deprioritizes a user or post, it makes a judgment about whether and to what extent it will publish information to its users—a judgment rooted in the platform’s own views about the sorts of content and viewpoints that are valuable and appropriate for dissemination on its site.” By doing so, social media companies are exercising their constitutionally protected right to editorial discretion and thus, S.B. 7072 violates their First Amendment rights.
Editorial discretion can simply be thought of as the right for platforms to choose what they want to host on their sites. Classic examples of companies that exercise editorial control include newspapers and cable operators. In the case Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc (1995), the Court stated that “when dissemination of a view contrary to one’s own is forced upon a speaker intimately connected with the communication advanced, the speaker’s right to autonomy over the message is compromised.” When a group of attorneys launched a similar lawsuit against a search engine for its algorithms favoring certain expressions on political subjects, the Supreme Court also ruled in favor of the search engine. The Court stated that the speaker, or in this case the search engine, had the autonomy to choose the content of their own message through editorial discretion.
Though the state argued that social media platforms should be treated like common carriers — such as railroads or telecommunications service providers that are held to equal access obligations — the court stated that social media platforms never fully functioned like a common carrier. Not only have social media companies always restricted the use of their platforms, but designating them as a common carrier would violate their right to editorial discretion and the protection they are entitled to under the first amendment.
After the ruling, the lawyers for the state made an appeal to the Supreme Court, which now has a majority of conservative-learning judges. What complicates the situation is that although S.B. 7072 has been blocked, the US Court of Appeals for the Fifth Circuit upheld Texas House Bill 20, a bill with similar goals of restricting moderation on social media platforms. Unfortunately, it is unlikely that the outcome of this debate will be resolved soon. Although the Supreme Court has hinted at an interest in these cases, it has also delayed making a decision and the justices voted 5-4 to temporarily block the Texas bill from taking effect. What is clear in the meantime, is that the ruling will serve as the bellwether of free speech on the internet, as well as for the role of social media in shaping discourse around political campaigns.
