Censorship Claims in Social Media Content Moderation

Trump’s presidency inextricably changed the relationship between social media and government. Since the 2016 election, social media as a vehicle of communication between the public and elected officials has been on the rise.  Even before he was elected president Trump’s personal tweets began to raise eyebrows, and within the first year of his presidency it became clear that his account would be the breeding ground for many questions about how the First Amendment will be reinterpreted in the digital age. Cries from Republicans about social media “censorship” only multiplied during the 2020 election when multiple platforms tagged posts of government officials with misinformation warnings. This tumultuous relationship between former President Trump and Twitter peaked after the January 6th insurrection when he was permanently suspended from the platform for inciting violence. Rather than viewing this action as a private company choosing to remove a user based on multiple violations of their company policy, Republicans viewed this as an act of unjust censorship. While many opponents of the President celebrated his ban, Republican supporters viewed this as even more evidence that “Big Tech” was biased against conservative viewpoints.

We are now seeing numerous attempts at the state level to take away social media companies’ ability to moderate content on their platforms as they see fit. Most recently, on September 9th, Governor Greg Abbott of Texas signed into law House Bill 20. In a press release promoted on his personal twitter, the Governor stated: “It is now law that Conservative viewpoints in Texas can not be banned on social media.” The law applies to social media platforms with more than 50 million users and says that social media companies can not censor content based on the viewpoint of the user, requires that any flagged content be removed or reinstated within 48 hours, and demands public reports about censored content.

It is important to note what kind of viewpoints Republicans are hoping to protect here. The Heartland Institute, a conservative think tank based in Illinois, publicly applauded the adoption of Texas House Bill 20, and in a subsequent op-ed noted “It’s incontrovertible that Big Tech is wielding its power with the purpose of suppressing open sharing of political, cultural, and religious views with whom it does not agree.” Examples of “censored” viewpoints include the idea that COVID-19 was created in a Chinese lab, medical doctors discussing the health benefits of hydroxychloroquine, and scientists arguing against “asserted climate crises”. These are tricky topics. While it seems reasonable for a doctor to explain the health benefits of a drug like hydroxychloroquine, what we instead saw were medication shortages for patients in need and preventable deaths of those who unnecessarily took the drug. While discussing the origins of COVID-19 seems important in a public health context, the rhetoric was often factually incorrect and  contributed to substantial harm including harassment and violence against Asian-Americans. Regardless of the individual viewpoint, it is well within the rights of social media companies to censor these topics based on their individual companies’ guidelines. In contrast, early in Trump’s presidency, Trump was prevented from blocking users because he was a government official, and the government blocking voices is a First Amendment violation.  The social media platforms themselves are private companies and face no similar restrictions on blocking users or content.

This is not the first law of its kind passed; in fact, a similar law was passed in Florida, where it was struck down by US District Judge Robert Hinkle on the grounds that it violated the First Amendment rights of companies to moderate user content on their own platforms. The problem with these kinds of laws is that they overlook the fact that all social media platforms are owned by private companies. While these platforms undoubtedly do have a strong influence on public opinion, the question of whether we should allow private companies to hold this much power is a separate question entirely than the constitutionality of forcing these companies to allow specific kinds of content or users to utilize their platforms. 

The main protection social media companies have against laws that aim to force them to allow specific kinds of content comes from Section 230 of the Communications Decency Act, a federal law passed in 1996 that guarantees internet companies protections against the speech of its users. Since the 2016 election, Republicans have begun to argue that Section 230 should require neutral content moderation, though neutrality is not mentioned in the law. Experts argue that as long as Section 230 is in place, any attempts to influence the content moderation strategies of social media platforms will be deemed unconstitutional. This is what happened with Florida’s Senate Bill 7072, and what is anticipated to happen to Texas’ House Bill 20 over the next couple of months. In fact, on September 22nd, two trade groups representing large social media platforms like Twitter, Facebook, and Google (who owns YouTube) filed suit in Texas to dispute the law. It seems likely this lawsuit will be successful. So why are these bills popping up in dozens of states? Darrell West, vice president of governance studies at the Brooking Institution stated  “This is red meat for the base. It’s a way to show conservatives they don’t like being pushed around… They’ve seen Trump get kicked off Facebook and Twitter and so this is a way to tell Republican voters this is unfair, and Republicans are fighting for them.” Since the First Amendments protects individuals from censorship from the government, not from private companies, it seems unlikely any of these laws will be around for long. Instead, these laws act as a rallying cry for Republicans to galvanize their base as “Big Tech” bias against conservatives is emerging as a top issue for the 2022 midterm elections.