Despite their increasingly bitter differences, Democrats and Republicans generally agree that content moderation by social media companies is haphazard at best. But while Democrats tend to think the main problem is too much speech of the wrong sort, Republicans complain that platforms like Facebook, Twitter and YouTube are biased against them.
The government cannot resolve this dispute and should not try. Siding with the critics who complain about online "misinformation" poses an obvious threat to free inquiry and open debate. And while attempting to mandate evenhandedness might seem more consistent with those values, it undermines the freedoms guaranteed by the First Amendment in a more subtle but equally troubling way.
Under a Texas law that the U.S. Court of Appeals for the 5th Circuit declined to block last week, the leading social media platforms are forbidden to discriminate against users or messages based on "viewpoint." The "censorship" that Texas has banned includes not just outright removal of content and cancellation of accounts but also any steps that make posts less visible, accessible or lucrative.
That means platforms are obliged to treat all posts equally, no matter how objectionable their content. With narrow exceptions for speech that is not constitutionally protected, Facebook et al. are not allowed to favor tolerance over bigotry, peace over violence, or verifiably true historical or scientific claims over demonstrably false ones.
While such neutrality is constitutionally mandatory for the government, imposing it on private actors violates the First Amendment right to exercise editorial discretion. The companies that challenged the law cited a line of Supreme Court decisions recognizing that right in a wide range of contexts, including a newspaper's selection of articles, a utility's control over the content of its newsletter, and a private organization's vetting of participants in a St. Patrick's Day Parade.
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Even assuming those cases established a general right to exercise editorial discretion, the 5th Circuit said, that is not an accurate description of what social media platforms are doing when they decide that certain posts are beyond the pale. Because they rely heavily on algorithms, do not review content before publication and take action against only a tiny percentage of messages, Judge Andrew Oldham declared in the majority opinion, Facebook et al. "are nothing like" a newspaper.
Writing in dissent, Judge Leslie Southwick objected to that characterization. While "none of the precedents fit seamlessly," Southwick said, a social media platform's right to curate content is analogous to "the right of newspapers to control what they do and do not print."
That right has never been contingent on whether editors do their jobs thoughtfully, consistently or fairly. As the U.S. Court of Appeals for the 11th Circuit observed when it blocked enforcement of Florida's social media law in May, "private actors have a First Amendment right to be 'unfair' -- which is to say, a right to have and express their own points of view."
Oldham rejected the argument that social media companies are expressing a point of view when they make moderation decisions based on "amorphous goals" like maintaining "a welcoming community" (YouTube), fostering "authenticity, safety, privacy, and dignity" (Facebook), or ensuring that "all people can participate in the public conversation freely and safely" (Twitter). Yet the conservatives who want the government to restrict moderation decisions take it for granted that social media companies have an ideological agenda -- one that is hostile to people on the right.
If social media platforms pursued that agenda more explicitly and systematically, Oldham's argument implies, the government might be obliged to respect their decisions. The more proactive and heavy-handed they were, the stronger their First Amendment claim would be.
Should the Supreme Court resolve the split between the 5th and 11th circuits by endorsing Oldham's reasoning, platforms that want to escape Texas-style regulation might decide that broader and tighter content restrictions are the way to go. By trying to mandate a diversity of opinions, the government could achieve the opposite result.
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