The Supreme Court and the Internet

[Bootstrap]

“Fact is” internet and media interference is a major topic, and has been for a few years, there are several MN threads on it,
Congress and the White House are wrangling with it. Other countries are doing various things.

How to use the internet is NOT settled science. It’s in process.

Cabbage carts were invented before brakes to prevent them from careening over cliffs.

Don't look now, but the Supreme Court is now looking seriously at some important cases involving Internet companies. Should they be treated like media companies? As a public square? They are private companies - how does that factor in?

Is restricting content moderation constitutional?
Are tech companies more like publishers or public utilities?

Can the government stop social media companies from doing content moderation that the government does not approve of? NetChoice v. Paxton and Moody v. NetChoice are about that.

Should social media companies be required to allow all speech? Or allowed to restrict attacks and threats? Pornography? Political disinformation? Bullying? If it does content moderation, should it be required to convince politicians that it is doing so fairly? Would politicians be fair in assessing them?

These aren't simple questions ...

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Here's one the Supreme Court just ruled on:

Supreme Court Issues New Test for State Action Liability of Public Officials on Social Media

On March 15, the Supreme Court unanimously held in Lindke v. Freed that a state official who blocks someone from commenting on the official’s social media page can constitute state action liable under 42 U. S. C. §1983, including for deprivation of their First Amendment rights, if the official both “(1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.”

This is the first time the Court has ruled on the social media activity of public officials, having previously denied a petition for writ of certiorari in 2021 for a case about whether Donald Trump violated his critics’ First Amendment rights by blocking them from his Twitter account while he was President of the United States. In that case, the Second Circuit had found that Trump was acting in a state capacity when he blocked his critics on Twitter and had thus violated their First Amendment rights.

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Thought I'd ask ChatGPT to make a list for me to save me time ...

1. O'Connor-Radcliff v. Garnier
- Discussion on whether elected officials can constitutionally block constituents from social media comments.
More Information on O'Connor-Radcliff v. Garnier

2. Lindke v. Freed
- Another case addressing similar issues as O'Connor-Radcliff v. Garnier, focusing on the city manager of Port Huron, Michigan, blocking a constituent on Facebook.
More Information

3. NetChoice LLC v. Paxton and Moody v. NetChoice LLC
- These cases are related and concern the laws in Florida and Texas that regulate how social media platforms can promote, demote, or remove posts. They challenge the extent to which states can influence the editorial decisions of social media companies under the First Amendment.
More Information on NetChoice LLC v. Paxton
More Information on Moody v. NetChoice LLC

4. Missouri v. Biden
- This case deals with the Biden administration's communications with social media platforms over content moderation, especially regarding misinformation and whether these actions amount to government coercion or collaboration.
More Information

[temporal1]

It’s a big big deal.

[Josh]

It does seem that providers need to make a choice of one or the other. Either they are "communications service providers", under section 230, and they have a basic obligation to provide a platform but not excessively police the speech of their users, or try to introduce an ideological bias.

Or they are "publishers", in which case they can police speech and establish ideology all they want... but then they're also responsible for the speech they allow.

Obscenity and pornography are, rather obviously, different than allowing people of differing ideologies to speak. I'm not sure why the waters always need muddied with that.

I would add another thing, modelled after Europe's approach with DMAs: a small company or business has very difficult obligations than a massive one that holds a dominant market position. It is entirely reasonable to place higher expectations on a large institution that has a dominant position. For example, the expectations on Facebook, a multi billion dollar business, should be much higher than MennoNet, a tiny site run by volunteers.

[Ken]

It does seem that providers need to make a choice of one or the other. Either they are "communications service providers", under section 230, and they have a basic obligation to provide a platform but not excessively police the speech of their users, or try to introduce an ideological bias.

Or they are "publishers", in which case they can police speech and establish ideology all they want... but then they're also responsible for the speech they allow.

What they actually do is neither.

They aren't simply communication service providers like the telephone company or Cable TV. Because what they do is deliberately curate, promote, and filter the information that everyone sees through their algorithms. We all get sent down different rabbit holes based on the decisions of Google, X, Facebook, etc. So my Twitter feed is different from someone else's. Some of that is due to users that I actually subscribe to. But a lot of it is just Twitter pushing stuff at me that their algorithm thinks will keep me engaged and seeing their ads.

So even though they are mostly passing on information posted by others. They are actively involved in curating the content that we see. And one shouldn't view each separate article or video as a separate piece of content on Twitter or Facebook. One should actually view a hour-long session on YouTube or Twitter as a single work like a book in which Google or Twitter are deciding which pages to include in that book and in which order to put them.

As long as they are algorithm-driven I'd treat them more like publishers. If the want to go to a simple communication service provider mode and scrap the algorithms then fine, they can be communication service providers.

[Josh]

An example of a reasonable Section 230 communications provider is MN, which doesn’t use algorithms to promote or hide anything. Reasonable moderation of obscenity or junk/spam is performed but is also done with relative transparency.

Legally speaking if someone is a publisher they’re liable for what they publish and don’t have section 230 safe harbour.

[Bootstrap]

I think there are hard questions here.

Suppose I Google "when did the first person land on the moon", should Google be expected to include results that say we never did? If I Google "what shape is the Earth", should Google be required to prominently display results that claim it is flat? In both cases, there are people who have various opinions.

If we allow Google to provide the conventional answers to those questions, what about questions like "Who won the 2020 presidential election"?

If Google were treated like a publisher, it would have the right to editorial control and could decide these things themselves. But sometimes people are loudly complaining that Google does not provide the answers they would prefer to see. Google is a big player on the Internet, and the Internet is clearly a public square, I think. So they are not wrong to complain ... but should Google be forced to promote what they believe to be falsehood?

I really do think these are hard questions.

[Josh]

An easy way is to subpoena a company’s business records in the event of a dispute and find out if there is intentional bias. That is indeed what happened at Twitter.

[temporal1]

An easy way is to subpoena a company’s business records in the event of a dispute and find out if there is intentional bias. That is indeed what happened at Twitter.

i expect Twitter to be a base line going forward.
It exposed, lots of powerful ones have no interest in fair+balanced. Thing is, what to do about that?

Fair+balanced is not human nature.