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Florida and Texas to ‘social media’: Bake our cake — or else!
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Florida and Texas to ‘social media’: Bake our cake — or else!

Facebook and X shouldn’t be forced to bake conservatives’, politicians’, or anyone else’s cake. Nor should they be able to eat their Section 230 cake and have it, too.

The U.S. Supreme Court on Monday heard oral arguments in Moody v. NetChoice and NetChoice v. Paxton, which concern whether Florida and Texas can force online platforms to disseminate posts they would prefer to throttle or remove entirely. Most legal analysts we’ve read agree that the court seems poised to strike down both laws on First Amendment grounds. Even liberal Justice Sonia Sotomayor remarked that the two states’ laws are “so broad that they stifle speech just on their face.”

Both laws would mandate, on penalty of steep fines, that any “content moderation” performed by the platforms be done in a “viewpoint-neutral” way. We agree with what seems to be the prevailing view: that the First Amendment protects platforms’ right to engage in whatever content moderation they choose.

By mandating essentially identical content moderation policies for all, Florida and Texas would deprive us of a crucial competitive advantage.

“If the New York Times or Fox News refuse to publish articles I submit to them because they disapprove of my views or even just because they think my writings will offend their audience, they surely have a First Amendment right to do so,” writes Ilya Somin at the libertarian Volokh Conspiracy blog. “If I don’t like Fox’s editorial policies, I can submit my content somewhere else. The same reasoning applies to Twitter or Facebook.”

Were these laws to be upheld, would the removal of any content protected under the First Amendment satisfy their viewpoint-neutrality test? Even with community guidelines and moderation training materials explicitly and emphatically based on viewpoint neutrality, we believe the risk associated with removing anything other than patently illegal speech would simply be too high.

Similarly for algorithmic curation of users’ feeds. Suppose a “neutral” algorithm, programmed to amplify or throttle content based solely on “engagement.” An algorithm’s predictions as to what will be engaging to any user or group of users will necessarily be “content-based.” Under these laws’ viewpoint-neutrality requirements, therefore, platforms would be reduced to delivering chronological — or, if they “think differently,” reverse-chronological — feeds.

Given that the entire “social media” business model relies upon curating and algorithmically manipulating content in ways that are necessarily content-based, the Florida and Texas laws would not only violate the platforms’ First Amendment rights, they would also decimate platforms’ revenue model.

These are, after all, surveillance businesses, not platforms for personal expression. As Edward Snowden observed, “Businesses that make money by collecting and selling detailed records of private lives were once plainly described as ‘surveillance companies.’” The name “social media” is just a deceptive “rebranding.”

Like any media company, their goal is to attract and keep the attention of their users — and monetize that attention. The main difference is that their digital footprint is larger, allowing them to use surveillance to monetize attention more effectively than a newspaper ever dreamed possible.

Take the case of X (formerly known as Twitter). Once the prevailing belief became that X under Elon Musk wasn’t “moderating” as much as Twitter under Jack Dorsey (whether or not it was actually true), advertisers abandoned the platform in droves. Many conservatives were happy, but they weren’t the ones left with a company that had lost half its market value.

It’s one thing to forgo revenue in pursuit of something else; it’s quite another to be forced to sacrifice revenue because the law has prohibited your entire business model. Given that this is precisely what the Texas and Florida laws do, might they constitute a taking under the Fifth Amendment?

We disagree with the content moderation and algorithmic manipulation practices of the traditional “social media” platforms. So much so that we’ve spent years working to offer alternatives. This is why we find it ironic that two “conservative” states have passed laws that effectively make it impossible to address the problems with content curation by competing in a free market. By mandating essentially identical content moderation policies for all, Florida and Texas would deprive us of a crucial competitive advantage.

One change in the law could clear the way for competition to solve this problem. It relates to the “tension” perceived by some of the justices between immunity from liability for “user-generated content” under Section 230 and the idea that moderating that content is an “expressive activity” protected by the First Amendment. No, “social media” companies shouldn’t be forced to bake conservatives’, politicians’, or anyone else’s cake. Nor should they be able to eat their Section 230 cake and have it, too.

Newspapers and other media can be held liable if their expressive activity is defamatory, for example. Why not “social media”? So while we applaud NetChoice for its First Amendment challenges to these state laws, we invite the company (and everyone else) to join our call to eliminate platform privilege and reduce the incentive for states to enact further “corrective” measures.

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