📱You Cannot Shout 'Fire' In A Crowded Tweet

In a 5-4 vote last week, the Supreme Court struck down a controversial Texas law governing social media platforms. HB 20, as it is known, applies to online platforms of 50 million users or more (so, basically, Facebook/Instagram, Twitter, TikTok, and YouTube), and “largely [prohibits them] from removing posts based on the viewpoints they express, with exceptions for the sexual exploitation of children, incitement of criminal activity and some threats of violence.” In essence, Texas tried to make illegal the removal of bad actors from large social media platforms. The law was challenged by industry trade groups, reaching both the 5th and 11th courts of Appeals, which in turn handed down opposing rulings. 

• Justices John Roberts, Stephen Breyer, Sonia Sotomayor, Amy Coney Barrett, and Brett Kavanaugh voted in favor of blocking the law, which was in response to an emergency suit filed by the trade groups NetChoice and the Computer and Communications Industry Association (CCIA), reports The Verge.

• Liberal Justice Elena Kagan joined conservative Justices Thomas, Alito, and Gorsuch in dissent of the stay, but did not explain her decision.

• In his dissent, Justice Alito stated that the “issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.” He also addressed what he saw as a states' rights issue: “While I can understand the Court’s apparent desire to delay enforcement of HB 20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty, and Texas should not be required to seek preclearance from the federal courts before its laws go into effect.” 

Where We Go From Here

“Are Facebook, Twitter, and YouTube so influential in our world that the government should restrain their decisions,” the New York Times asks, “or are they private companies that should have the freedom to set their own rules?” Currently, a law known as Section 230 of the Communications Decency Act protects social media sites from being held responsible for what is posted on their platforms, however, it is recently coming under new scrutiny. In 2020, Justice Clarence Thomas wrote that “in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms,” and whether these sites are “sufficiently akin to common carriers or places of accommodation to be regulated in this manner.” Basically, the First Amendment should apply to Twitter, Facebook, et al.

The Verdict

No doubt that Big Tech has taken over our lives to the extent that makes them akin to the public sphere. Does that mean that anyone can say anything (no matter its effects) on one of these platforms because it’s protected by the First Amendment? Surely that’s going too far. But maybe it’s a good thing that we’ve gotten the ball rolling on the question of regulating Big Tech further.