US Supreme Court throws out rulings on state laws regulating social media

But I’m wondering: suppose they pass a new law permitting state residents to challenge in court “arbitrary and capricious” content moderation decisions. And to publicly justify it, they find some examples of state residents who claim to be victims of such decisions (I’m sure they could), but for posting things that aren’t obviously political. For example, we live on the other side of the planet, but I’m thinking of the time my wife was suspended from Facebook for joking that her cousin’s baby was “so cute she had to kidnap her”-her cousin read that as just a figure of speech not a violent threat against a child, Facebook disagreed.

So, a law to permit judicial review of content moderation decisions could be sold as something apolitical, and a law with such an apolitical framing might be more likely to be upheld by the Supreme Court. But once it has been accepted with that apolitical framing, then there is the potential for the judiciary to apply it in more explicitly political cases; and the precedent of applying it in apolitical cases may make courts more likely to accept it as constitutional if its application is later extended to more political cases too.

No, not in the slightest. Section 230 is completely orthogonal from the First Amendment. Section 230 deals with civil liability for speech that is NOT protected by the 1A and the practical effects of that as it intersects with the realities of the legal system. It has nothing to do with letting government put its thumb on the scale.

>If the social media companies claim that their choice to show or not promote or censor user content is free speech, should that speech still be exempt as if they had no control over it?

That's not what 230 is about, 230 is precisely about allowing imperfect control to be exercised. It is long, long established (rightly) that what someone allows or doesn't on their own private property and to be published under their own media is expressive, and thus protected by the 1A. If someone wishes to assert something falls outside of the 1A though (like defamation), litigating that can be expensive, as can liability if it was. There are two historic ways to handle that pre-CDA.

1. Pre-vetting (traditional publishing): With traditional media like a newspaper which published both 1st and 3rd party content (like letters to the editor), it was both necessary and practical to pre-vet everything published (and have contracts regarding liability, insurance etc). So they're responsible for what they publish, but can handle that. But that doesn't scale at all. Imagine if dang had to read every single post here on HN and evaluate whether it was legal before allowing it to go up, making edits if necessary.

2. Common carrier (classic example being carriers ala post office, UPS, or Fedex, electronic ones being ISPs): here an entity simply provides a service to anyone without any content discrimination at all beyond things like court order or provisions related to providing the service itself, like preventing anything that'd directly threaten, disrupt or damage the provider. So a mail carrier can prohibit hazardous substances requiring special handling they don't offer (or only offer with special services and costs for the equipment/training required), an ISP can deal with DoS, hack attempts and so on. But that means spam and stuff you don't want to see is passed along too.

Neither of these fit with what the people want from private forums of all flavors (from bbs to the newest social media) on the internet. It's desirable to have something that is fast and scales, where even an individual not well off person is able to have a blog and have a very low cost to run the underlying platform for that, and enable a comment section, or have a little phpBB forum or whatever else, and then let people discuss that. It's also desirable to allow there to be content discrimination (moderation, this forum is for talking about specific issues not spamming ads) that is imperfect and non-instant, without then making the hoster legally liable for anyone posting anything not protected by the 1A, and without requiring an enormously burdensome legal process for that. Section 230 was created directly as a result of Stratton Oakmont v. Prodigy, where a court found that because Prodigy had exercised editorial discretion, they were then liable for all content carried. This would destroy much of the internet. Want to have a forum devoted to cats and rockets, and so you delete posts about fish and trains? Now if someone posted something defamatory you didn't notice or realize was, you're liable for it.

So Section 230 was created to specifically to enable people to moderate content done by others, without becoming liable as a traditional publisher even if they missed things or were slow (an inevitability). They're still liable for their own speech. They're also still protected by the 1A for their own speech. At no point was it OK, with or without 230, for the government (federal or state) to put its thumb on the scale.

> It is necessary to say more about how the First Amendment relates to the laws’ content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below. That need is especially stark for the Fifth Circuit, whose decision rested on a serious misunderstanding of First Amendment precedent and principle.

The core principles of content moderation and editorial review being protected free speech are pretty strongly worded throughout the decision.

yes, it will probably take years to get a case with actual standing, but you know there are people itching to offend a state's law specifically to take bring it before SCOTUS. this one was just a bit premature.

The last phrase is correct, but the first part doesn't really track. You (an individual or a company) still have all your First Amendment rights. You never had the right to post here or anywhere else you didn't own.

Well, yeah. As Billy Joel said, "Yes, you can speak your mind, but not on my time." I don't have to carry your speech if I don't agree with it.

> I really don't understand any of this, and it is alarming. Instead of Congress or the courts establishing a reasoable framework about how to regulate speech on the internet, it has just handed individuals' 1st Amendment rights to the people who own the internet.

I think, if you understood it better, you might be less alarmed. First, the Supreme Court didn't hand anything to anyone. It said that lower courts were incorrectly analyzing the First Amendment aspects of laws that regulate speech on the internet. It didn't say their conclusions were right, or even wrong. It said their analysis wasn't good enough.

Yes, Congress should create some guidance. In fact, I think they did - I think that's what Section 230 was. But two states decided they wanted a different set of rules, and wrote state laws. In a few more years, we're going to find out whether those state laws are constitutional. If they are (or even if they aren't), they're going to give some guidance as to what changes are possible to Section 230. Then, maybe, Congress will decide to pass something, and then we can have lawsuits about that.

TL;DR: For today, nothing has actually changed. Nothing.

Also, trying to strong arm the media is well within the Republican political ideology, especially under the guidance of their current presidential nominee.

While in the same breath removing regulatory oversight by revoking Chevron

Protecting free speech has been the ideology of democrats for ages. The Free Speech Movement was fought by those on the left side of the political spectrum.

Both parties broadly support the idea that the government shouldn’t sanction speech, but also the right to not associate with particular individuals depending on the sorts of things they say. There’s variation in the sorts of things that might make members of either party think you are a bad person for saying them, or for associating with people who say them.

The right strategy is a two pronged approach:

The first (and most important) is to address government pressure, and to establish strong First Amendment protections against Congress and federal agencies from putting their thumb on the scale. This unfortunately failed in Murthy v. Missouri, but since it was rejected for reasons of standing rather than on statutory grounds, I think there is good reason to think this could succeed in the future (especially because there is prior precedent stating that the government cannot pressure private actors to do anything the government itself does not have the power to do directly).

The second approach is to focus on how Section 230 is enforced. Section 230 grants broad immunity to social media companies to engage in content moderation without liability (as it should) but I think we need to establish what is meant by "good faith" moderation. The best way I see to establish "good faith" is to set clear expectations about what content is allowed, and any moderation beyond that is done by users customizing their own experience. A pattern of moderation which is contrary to stated policy, especially when it is contrary to the interests of users, could be "bad faith" moderation that would exempt the platform from Section 230 protections, and possibly be considered an unfair business practice (and thus subject to civil litigation).

I think this would be in the best interests of all social media users of every political stripe. And none of this would prevent social media companies from systematically suppressing conservative content as "disinformation", but it would prevent them from doing so surreptitiously or under pressure from the government.

In reality, both sides all just serve at the pleasure of the elite.

What I love about Trump (despite never having a desire to votefor him) is he makes no attempt to hide that, often times going so far as to rub the political class' noses in it.

I don't think state regulation of private business is an ideology in itself. It's not an all or nothing choice. You may want it for some aspects, not for others. Social democrats tend to use regulation to protect little folk, conservatives see it as a power tool.