The Supreme Court could soon change the Internet forever, here’s what you need to know

Amid the wars in the Middle East and Ukraine, social media companies are struggling with an onslaught of misinformation, often spread by bot and troll accounts. An upcoming Supreme Court decision may make this problem worse.

On September 29, the Supreme Court announced that it will rule on whether to allow recently passed laws in Florida and Texas that restrict social media sites from removing certain users and posts. The purpose of these broad rules is to prevent censorship of political candidates and all user views. Technology trade association NetChoice said the rules, currently blocked by federal courts, would “change Internet speech as we know it today.”

According to Pew Research, the share of Americans 18 and older who use social media has grown from 50 percent to 72 percent in the past decade. As global conflicts intensify and the 2024 US presidential election approaches, the Supreme Court’s decision may have a profound impact on the future of online speech and democracies around the world.

Lawmakers in Florida and Texas have argued that their laws are necessary to prevent social media platforms from censoring or unfairly suppressing conservative views. In their view, civil discourse is the backbone of well-functioning democracies. Indeed, both political factions have accused the social media giants of biased moderation practices. A 2020 poll by Pew found that 75 percent of Americans—conservatives and liberals—believe that Facebook and Twitter/X censor political views.

Herein lies the rub. While the intentions behind these states’ laws may be good, the approach is fundamentally flawed.

The First Amendment protects individuals from government censorship. The question the Supreme Court grappled with is to what extent the First Amendment provides such rights to private corporations.

There is a history of case law protecting the rights of private publishers and social networks to make their own editorial decisions — including algorithmically classified content. A May 2022 ruling by the United States Court of Appeals (11th Circuit) that blocked Florida’s law stated: “While the Constitution protects citizens from government efforts to limit their access to social media .. No one has the right to force a platform to allow it. [a citizen] to participate in or consume social media content.”

However, in a contradictory sentence at the same time, 5^{the seventh} Circuit upheld Texas law, rejecting First Amendment rights of private corporations. Notably, both circuit courts were composed of three Republican judges.

If the Supreme Court with 5^{the seventh} The circuit thereby compels social media sites to publish or not publish certain types of speech, effectively violating the government’s First Amendment rights of social media companies. This would be a problematic precedent. When the government engages in moderation decisions for social platforms, imagine how future lawmakers could abuse such powers—for example, by forcing social platforms to promote the government’s position in international conflicts or It is easy to defend against or against the validity of elections. The results or effectiveness of vaccines depend on the party in power.

Another troubling outcome of this scenario is that some social sites may be forced to take a “hands off” approach and stop all moderation altogether, for fear of government fines and user complaints. If history is any guide, then they will be inundated with spam, hate speech, pornography, bullying, fraud, incitement to violence, and exponentially more than we see today. Paradoxically, this makes social media unusable for most people, regardless of their politics. It was this user experience on “anything goes” sites like 8Chan and Secret that caused the founder to shut down the site and refund its investors.

There are related cases where we can look for clues about the Supreme Court’s upcoming decision. For example, a 2018 ruling found that a Colorado baker had the right to refuse a wedding cake for a same-sex couple because it was against his religious beliefs. It established a strong precedent for the rights of commercial operators to allow or deny service at their discretion. Given the conservative majority on the Supreme Court, one might imagine he would sympathize with Florida and Texas on this. By that measure, however, the court’s history and conservative leanings suggest it is more likely to favor private companies over government influence.

With all of this in mind, what is the best solution to support free speech, reduce political bias, and reduce misinformation on social media?

One step is to break the monopoly power of the current social giants. Stronger antitrust enforcement would better give social media the opportunity to reach critical mass and compete effectively. The Federal Trade Commission’s (FTC) current antitrust lawsuit against Facebook supports this assumption.

The second step is the adoption of legislation that supports data and content interoperability. This leveling of the playing field makes it easy for all social media users to transfer their content, contacts, and fans/followers from one site to another. This will help break down the exclusivity barriers that currently limit users to a specific platform. In the past few years, initiatives that tried to legislate this issue have stalled. Recently, in a bipartisan show, five senators supported the reintroduction of the ACCESS (Enhancing Compatibility and Competition by Enabling Service Switch) Act. The time has come to do so.

The third step is to renew the legal protection of Section 230, which has recently been criticized by both political parties. In fact, in 5^{the seventh} The Circuit’s legal interpretation, as summarized by the Princeton Law Journal, “Section 230 means that social media companies are not publishers of content posted on their platforms, and therefore do not enjoy the same First Amendment protections as other publishers.” ” This is an unprecedented view that contradicts the purpose and support provided by this cornerstone of the Internet.

Section 230, enacted in 1996, remains critical to a functioning free market. This gives sites wide latitude to monitor content as they see fit without being held liable for content posted by their users. This protects startups and SMEs without huge budgets or an army of lawyers from being bankrupted by content liability lawsuits.

Perhaps most importantly, the fourth step is narrowly targeted legislation requiring major social networks such as Facebook, Instagram, Twitter/X, and TikTok to implement mandatory user authentication. The verification system does not collect user data beyond the minimum necessary to verify users as genuine individuals. Russia, Iran, China and other nefarious actors routinely deploy bot and troll farms on social media to spread misinformation and subvert democracies while hiding behind the cloak of anonymity. Mandatory user authentication is the best option we have to mitigate this threat. Taking a page from the EU Digital Services Act, which applies to all platforms operating in the EU, the new law could affect all major social media sites operating in the US.

Instead of dictating content moderation policies to private companies, the Supreme Court could uphold the First Amendment rights of private companies, and lawmakers could focus on strengthening the principles of free markets and fair competition online, while minimizing anonymous bots and trolls from the discourse. Valid civil support. In this scenario, if users don’t like the moderation policies of Facebook, Instagram, Twitter/X, Tik Tok, etc., they can seamlessly migrate to applicable options. It is the true spirit of capitalism that supports both private enterprise and civil discourse in democratic societies.

Mark Weinstein is a world-renowned technology thought leader and privacy expert. He is the founder of this social network MeWewhich he left in July 2022 and is currently writing a book on the intersection of social media, mental health, privacy, civil discourse, and democracy.