WATERLOO – Looking back, Philip Cohen admits a certain amount of pride in the fact that he was turned down by the previous US president.
But when Cohen learned what had happened in 2017 and pulled up Donald Trump’s feed on what was then called Twitter, he didn’t feel smug or vindicated.
He felt mute.
Cohen, a sociologist who was barred from commenting on Trump’s tweets repeatedly and who then sued the former president, saying that the action violated the First Amendment, said, “I was honestly shocked.” Cohen compared writing nasty comments to “carrying a sign at a protest – but with a much bigger audience.”
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Cohen’s appeal was dismissed by the Supreme Court in 2021, but the justices now have another chance to rule on the issue of whether governmental officials may block Americans on social media. The high court is currently hearing a number of cases, all of which might have a significant impact on how Americans communicate online.
According to legal experts, the Supreme Court’s upcoming term could be the most significant in decades for deciding the scope of the government’s authority to control online content.
Whether social media platforms are protected by the First Amendment for their management of divisive voices and viewpoints is at issue in one set of cases. The issue is crucial because Facebook, YouTube, and X have an increasing impact on American lives and democracy. Another instance raises the issue of whether the Biden administration overstepped its bounds by pressuring the platforms to take down posts about COVID-19 and elections.
An intense partisan dispute over how social media handles political content and false information is the backdrop against which the cases are being filed. If the Supreme Court rules in all the cases, the verdicts might have a significant impact on politics and social media, coming right in the heart of the election the following year.
According to Erwin Chemerinsky, dean of Berkeley Law, “one of the most significant themes of the term will be the Supreme Court having to deal with the internet and social media more than ever before.”
“Lawful but terrible” online content?
The two cases involving contentious laws in Florida and Texas that would drastically reduce the amount of content that social media companies may monitor on their platforms are at the top of the list. The Supreme Court may decide whether to take them into consideration as soon as next week.
The laws were a result of long-standing suspicions of political partiality for liberal voices and viewpoints by Silicon Valley internet corporations, which were sparked by social media’s efforts to block Trump following the attack on the Capitol on January 6. According to the states, its legislation aims to make sure that the platforms grant “equal access to the public.”
Texas Governor Greg Abbott, a Republican, stated when he signed the bill in 2021: “There is a dangerous movement by some social media companies to silence conservative ideas and values.” “This is wrong, and Texas will not tolerate it.”
Similar statements were made by Florida Governor Ron DeSantis, a candidate for the Republican presidential nomination, who claimed that the measure he signed in the same year “guaranteed protection against the Silicon Valley elites.” He added that he was aware that the law would face opposition and that the Supreme Court would ultimately have to rule if it was constitutional.
The state legislation, according to two trade groups that represent internet businesses’ interests, would completely disrupt social media and drive away users by clogging platforms with an unmanageable tide of toxic muck.
“Normal people do not want to go on websites and just see a ton of lawful but awful content,” said Chris Marchese, who is in charge of litigation at NetChoice.
The Computer & Communications Industry Association’s president, Matt Schruers, described the likely result as “nothing less than a digital service’s ability to decide what content is appropriate for their community and their ability to protect their community from dangerous actors online.”
“The solution to the problem is not to say ‘no viewpoint discrimination,'” Schruers said. “Because sympathizing with the Taliban is a viewpoint. Nazis, that’s a viewpoint. Telling kids that detergent pods are tasty, that’s a viewpoint.”
Saying ‘no viewpoint discrimination’ is not the answer, according to Schruers. “Because supporting the Taliban is a point of view. Nazis, that’s one point of view. It is a notion to tell children that detergent pods are tasty.
Not just Trump: School boards also censor opposition
The Supreme Court, which does not actively use social media, will rule in two instances about whether public figures can prevent citizens from leaving negative comments on their accounts. In one case, members of a school board in Southern California blocked what they deemed to be “spam,” but what parents claimed to be instances of “engagement.”
In a comparable incident, the municipal manager of Port Huron, Michigan, restricted locals from accessing his Facebook page. Among them was a person who wrote in a post that local officials were dining at a “pricey” restaurant amid the COVID-19 outbreak.
In November, the Supreme Court will hear arguments over the blocked users.
When the social media cases are considered collectively, experts believe the high court will have the biggest influence on the internet since 1997, when a unanimous court overturned an online indecency law and equalized First Amendment protection for speech on the internet with that of other media like newspapers and television.
“The term has the potential to be a referendum about the relationship between government and social media,” said Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University, which represented Cohen and other plaintiffs in their lawsuit against Trump.
“These cases, depending on how they’re decided, could really reshape speech on the internet,” said Ryan Calo, a law professor at the University of Washington.
Can Facebook be pressured by the White House to take down a post?
Another case, which is currently on the Supreme Court’s emergency docket, concerns the extent to which government authorities may pressure social media companies to remove content they deem to be false or harmful.
The White House, health officials, and FBI may have violated the First Amendment rights of people who posted about COVID-19 and the elections by pressuring tech companies to suppress or remove the posts, according to a lower court decision that was appealed last week by the Biden administration.
Republican attorneys general from Louisiana and Missouri, as well as others who claimed their speech had been restricted, filed the complaint. The immediate question of whether to halt the lower court’s decision while the underlying case is ongoing is likely to be decided by the Supreme Court as soon as this Friday.
Anupam Chander, a visiting scholar at Harvard University’s Institute for Rebooting Social Media, described the case as “really a blockbuster case that kind of comes out of nowhere because people weren’t paying that much attention to this issue.” Suddenly, the effectiveness of communications between the federal government, state governments, and internet platforms is being examined.
A struggle in the culture war that “affects us all”
The Supreme Court’s docket has been filled with the contentious social media discussion as a result of the litigation, but analysts predict that the cases will have implications that go well beyond culture war politics.
Blocking some users could skew the opinions of city and state officials that use social media to collect feedback on policy. Regulating social media’s use as a channel for communication between voters and elected officials could have unintended effects for democracy.
Professor at Vanderbilt Law School Jennifer Safstrom remarked, “This really affects us all.” It has an impact on the breadth, the depth, and the accessibility of discussions on a wide range of topics of public interest.
An angry Trump fan after her social media posts are deleted
Gayla Baer-Taylor, a Republican and a follower of Donald Trump, becomes irate when her social media messages are deleted or she perceives that her reach is being restricted. The host of the podcast “No Left Turns” and a marketing specialist from Indiana asks platforms to cease suppressing users’ political opinions.
No one’s First Amendment rights should be restricted, according to Baer-Taylor.
The 56-year-old grandmother of nine, however, asserts that social media sites also owe it to their users, particularly young ones, to protect them from harmful and dangerous content, such as Nazism or terrorism.
I do believe there needs to be some moderation, but I’m not sure where we draw the line, she added.