In 2021, Texas passed laws allowing residents and attorneys to sue social media companies on accounts of unfair bans or usage. Similarly, in Florida, laws were put into place, moderating social media exposure surrounding political campaigns. Now two years later, things are beginning to change.
Last week, The Supreme Court came to an agreement, challenging laws passed in 2021 in Texas and Florida. These laws would limit the ability of platforms like X ( twitter), Tik tok and Youtube to moderate content. In the upcoming court case, the Supreme court will examine whether or not states have the constitutional authority to moderate how social media companies manage public opinion.
Jameel Jaffer, executive director at the Knight First Amendment Institute, stated that “These cases could completely reshape the digital public sphere”. With the changes to American society and advancements in public opinion, First amendment interpretations might be revamped.
The Commerce Clause states that the federal government has the power to regulate any interstate commerce. Social media undoubtedly has a noticeable power in influencing American citizens. From voters to teenagers, social media has the power to portray people in both negative and positive lights. Because of social media’s power to influence trade, economic and overall status between states, these large technology companies could be violating the commerce clause, giving Congress the power to moderate what can and cannot be posted.
In the past, we have seen trouble sprout from social media. In 2021, former President Donald J. Trump was permanently banned from Twitter ( now known as X). This decision came from a series of employee pushback, overwhelming public disapproval and bitter dialogues– ultimately a result of the former president’s extremely questionable tweets. While many may argue that this decision was “fair” and made perfect sense - appeasing a majority of public opinion- the argument that Social Media companies might be oppressing a political presence and therefore showing bias towards one particular side can ultimately be made.
Overall, as society advances into a more technologically advanced atmosphere, the federal and state government will ultimately have to adapt. The confusion surround legality of social media is just one of many possible problems that come with American advancements. As Thomas Jefferson once said, “No work of man is perfect. It is inevitable that, in the course of time, the imperfections of a written Constitution will become apparent."
7 comments:
Great example of just discussed topic of federalism. What lies under the jurisdiction of states and what under the federal government? However, I feel that the Commerce Clause doesn't really apply to this case. The Commerce Clause relates to the powers that Congress, and by extension, the federal government has. This case is between states and private companies (social media platforms). Neither party has any ties to the Commerce Clause. Federal government's, or more specifically the Supreme Court's, role is of an impartial (as impartial as party-influenced individual judges can be) jury. You bring up a brief sentence about the implications of the limitations/expansion of the First Amendment which I feel to be a more suitable legal foundation. Do written, online tweets, comments, and photos count under free speech? Would restricting such "speech" therefore be a violation of the First Amendment? Personally, I feel yes. In an age of great technological rise, many have turned to social media for not only personal uses, but also advocacy. If states can restrict what is posted online, minority voices would be struck down-- the complete opposite of the pluralism advocated by Madison.
I totally agree with you. However, I feel the commerce clause could apply to this situation based on how one interprets the use and effect of Social Media. The Commerce Clause grants Congress the power to regulate interstate commerce. With the drastic effects of Social Media in our modern society, I strongly believe that public opinion and social media advertisement could play a role in swaying interstate economics and trade. By this interpretation, wouldn't the commerce clause grant the federal government the power to regulate social media?
Following along with that interpretation, neither individual states nor private technology companies would have the right to regulate social media. But, is that not what the two parties are in this case? Just to clarify, are you suggesting the possibility that Congress instead takes control?
I think the role of government in regulating social media is quite an interesting question. I think its a very complex topic since social media platforms are privatized. Technically speaking, they have the right to refuse service to anyone as long as they don't discriminate based on race, age, sex and other common sense stuff. Therefore on an operational business level, these platforms should be allowed to ban members whenever they feel the atmosphere is being disrupted. However, freedom of speech stuff also applies and thus makes the debate wayyyy more complicated. I feel like it would be a logistical nightmare to have different laws in different states regarding social media moderation so I do feel like some form of federal government intervention or a clear definition of what states can and can't do would be cool. I like chin-yi am not sure if that necessarily falls under the commerce clause, but given past loose interpretations I suppose an argument could be made.
To build on this discussion of whether the commerce clause can be applied to this situation, there are definitely a variety of arguments that can be made to support either side. With the Congress viewing social media companies as Internet-based companies that participate in interstate commerce, they believe they can remove content they believe is harmful, but as Owen stated, such regulation goes against the First Amendment. Many make the argument that via the companies terms and service agreements, they are free to censor without violating this right, however, when such censorship occurs due to the government’s ordering, that is when the violation occurs. Congress has always held “obscenity, defamation, fraud, incitement, and speech integral to criminal conduct” outside the protection of freedom of speech, however the question arises if false statements of fact should be counted within this. I believe that obviously if such statements contribute to harm like with fraud, they should be regulated, but in many cases like with the broader idea of checks and balances, such false statements may further the “search for truth.” As the Syracuse Law Review states, meeting such errors may make the perception of the truth much clearer.
Sources:
https://lawreview.syr.edu/wp-content/uploads/2018/10/I-Brown-and-Peters-FINAL-v3.pdf
I agree that the regulation of social media by the federal government is a complex thing to understand. I feel like the regulation of a "free space" such as Twitter, Instagram, etc. would be a violation of the First Amendment(freedom of speech) and cause much bigger issues. Such as who decides what should be censored. or how to determine what censor qualifications are? And much more. I think that regulating different people on social media will result in some form of discrimination on behalf of the censor, this would also allow different groups to censor others, proving to be controversial. But despite being open to the public, social media companies are private companies that within themselves can set standards and regulate those who post inappropriate and unkind things to protect those who are able to see these posts. Through being private the companies aren't held to the standard of the First Amendment. I feel like social media companies already have so many safeguards to protect their users but the guards are no use and can easily be escaped by lying and such. I wonder if Federal Involvement would prevent users from avoiding these guards and create a better, safer media space.
I also agree with Chin-Yi and Owen. I understand that the commerce clause can be loosely interpreted and often is, but I don't see how that completely applies to the moderation of social media by the federal government. Similarly to Chin-Yi, I feel that if states/federal government were given the power to moderate social media, then it would violate the First Amendment which allows for free speech and other basic rights. Going along with this idea, why can't the people who already moderate these private businesses ban/control what happens within their social media app? As Cody mentioned in his article, Trump was banned from Twitter (now X) by the push from employees. If the employees of these social media companies can't ban people themselves, why can't the company take a majority vote on those who are controversial on social media and ban them? I don't usually follow the news and current politics and though many of those in politics will use social media to persuade the vast majority, I think it is a helpful way for people who are similar to me to receive information on current events and political events.
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