By Maya Prasad, J.D. Candidate, 2024
The Capitol attack on January 6, 2021 was a rude awakening for America, particularly for social media companies. Platforms such as Facebook and Twitter decided to revoke former President Trump’s online forums, a policy still in effect today, to stop the spread of misinformation which helped instigate the insurgency.1
In response to social media companies limiting the misinformation posted by Trump and those who propagated his false claims, Texas passed a bill that prevents social media companies from suspending users due to their political views.2 Under the First Amendment, each person has a fundamental right to free speech and exchange of information.3As such, the political ideologies of technology companies should not influence who can access the platform and consequently suppress voices. According to the bill, any Texas resident who is banned from a social media platform over their political ideas can sue the platform for declaratory and injunctive relief.4
On September 22, 2021, Facebook, YouTube, and Twitter filed a lawsuit against Texas, claiming that this law encroached upon their First Amendment right as private companies to moderate content on their own respective platforms.5 They also assert that the First Amendment is meant to protect citizens from censorship by the government and not from regulation by a private company.6 According to the Texas bill, although social media platforms are private companies, their product makes them a “common carrier,” or a business that serves a public interest.7 Therefore, the First Amendment protects people from decisions social media companies make to regulate content.8
A federal court has temporarily blocked Texas from enforcing portions of the law, and litigation continues.9 The outcome of a previous dispute over a similarly contested bill in Florida might provide some insight into which party might ultimately prevail in this battle of First Amendment rights. 10 The Florida bill was blocked on June 30, 2021. The U.S. District Court for the Northern District of Florida concluded that the law banning social media companies from suspending politicians’ profiles violated the companies’ First Amendment rights.11 The court concluded that the Florida law seeks to compel speech by forcing social media companies to make particular editorial judgments, which the First Amendment has long been held to prohibit.12
Social media companies also assert that they are not limiting political views, but that they are limiting the spread of misinformed content that has the potential to cause human rights violations and endanger the public.13 Undoubtedly, social media has the ability to rapidly spread misinformation, from the conspiracy theories regarding the 2020 U.S. election to WhatsApp forwards discouraging COVID-19 vaccinations via fake science.14
For example, the harmful cost of failing to moderate misinformation can be observed in Facebook’s involvement with the Myanmar genocide. Myanmar military personnel flooded Facebook with anti-Rohingya propaganda by creating fake news pages that spread false stories and photos about how the Rohingya were threatening the Buddhist population.15 Ultimately, this caused large-scale hate crimes and violence against the Rohingya and forced a large percentage of their population to leave Myanmar.16 Although Facebook closed down the troll accounts involved in the false propaganda, it was too late in preventing the harms committed against the Rohingya people.17
Similarly, social media companies failed to stop the misinformation from spreading before the Capitol attack. However, in this case, they acted soon after to prevent similar attacks that could have seriously damaged the American election process and democracy. One can only hope that social media companies will implement policies and tools to moderate misinformation on their respective platforms before they lead to violence and chaos.
As Spider-Man once put it, with great power comes great responsibility,18 and it is arguably a vital duty for social media companies to limit misinformation, especially when it incites human rights violations and hate crimes and endangers the public.