On January 7, 2025, Meta founder and CEO Mark Zuckerberg (“Zuckerberg”) announced the discontinuation of the company’s fact-checking program on social media platforms such as Facebook and Instagram. Meta will now rely on its 3.2 billion daily users to identify and correct inaccurate or false posts.[i] This system is similar to the one used by X (formerly Twitter), which was first implemented in January 2021.[ii] Since Elon Musk’s $44 billion acquisition of X in October 2022, the platform has positioned itself as an industry leader in protecting and promoting free speech.
Meta’s fact-checking program was originally created to stop and prevent the spread of misinformation and “fake news.” During the 2016 presidential election, Facebook was heavily criticized for allegedly enabling the spread of election misinformation. This perceived need to combat misinformation only grew following recent events like Brexit, the COVID-19 pandemic, and subsequent presidential elections.
However, from its inception, Meta’s fact-checking system and its censorship of posts sparked widespread debate over social media companies’ power to suppress speech. The debate reached its ultimate peak when President Donald J. Trump was permanently banned from X (then Twitter) after the insurrection of the U.S. Capitol on January 6, 2021. Twitter cited the “risk of further incitement of violence” as their reason for banning President Trump.[iii]
The issue of President Trump’s Twitter ban was addressed in the case of Biden v. Knight First Amendment Institute.[iv] Justice Clarence Thomas wrote a concurrence on the grant of certiorari in which he highlighted the dangers of allowing social media companies to have complete autonomy over public discourse. He went on to suggest that companies like Facebook and Instagram should be considered common carriers, much like telephone companies or radio stations.[v] Designating these platforms as common carriers would require the platforms to allow everyone an equal chance to freely speak on the platform regardless of their individual political beliefs, eliminating content-based censorship. This perspective shows social media companies’ unique and immense power over news dissemination and public speech.
A recent anecdote in this debate came from the January 10th, 2025, episode of The Joe Rogan Experience. In the episode Zuckerberg shared his thoughts about Meta, its platforms, and content regulation on those platforms. When discussing content regulation, Zuckerberg stated that “they pushed us super hard to take down things that were honestly [] true.”[vi] When asked who “they” referred to, Zuckerberg specified it was members of the Biden Administration pressuring Facebook to remove posts that suggested the COVID-19 vaccine may have side effects. “[T]hese people from the Biden Administration would call up our team and [] scream at them and curse.”[viii] In a later statement, Zuckerberg admitted that Meta’s fact-checking system “reached a point where it’s just too many mistakes and too much censorship.”[ix] He acknowledged that eliminating the fact-checking program and implementing a community-based review would increase the “bad stuff” on the platforms, but it would reduce the amount of innocent users being affected.[x]
The intersection of government involvement and private media moderation has raised some crucial legal questions. Historically, private individuals and companies were not subject to Constitutional limitations like the First Amendment unless there was some kind of government action or said private individual was acting in place of the government. However, the extent to which the government has been involved recently has blurred the lines between private action and state action. It has gone as far as members of the Biden Administration having daily conversations with employees and executives of Facebook.[xi]
Courts have yet to provide a definitive answer to the question of whether First Amendment protections should be applied to private social media companies. In the 2024 case of Murphy v. Missouri, two States and five social-media users brought suit against dozens of Executive Branch officials and agencies after their posts and accounts were censored or banned.[xii] The Court ultimately held that the plaintiffs lacked standing to sue because they could not “demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek.”[xiii]
Nonetheless, the Supreme Court has recognized how important social media is to modern public discourse. In Packingham v. North Carolina, the Court stated that “[t]oday, one of the most important places to exchange views is cyberspace, particularly social media, which offers ‘relatively unlimited, low-cost capacity for communication of all kinds,’ (citations omitted) to users engaged in a wide array of protected First Amendment activity on any number of diverse topics.”[xiv] While Packingham, did involve a standing issue, the Court has shown that it believes social media platforms are essential in our modern society.
Considering the alternatives, utilizing community notes like those implemented by X is the best course of action, given the Court’s lack of proper instruction. Recent studies have shown that community notes correct false or misleading information, while other studies say that these notes are never actually seen by users of the platform.[xv] So, while platforms like X and now Meta are returning some of the power to the people, the goal of properly managing misinformation while adequately protecting individual First Amendment rights is far from complete. Given the lack of sufficient jurisprudence and standards regarding these rights on social media platforms, community notes are currently the best available solution.
[i] See Mike Issac & Theodore Schleifer, Meta Says it Will End its Fact-Checking Program on Social Media Posts, N.Y. Times (Jan. 15, 2025), https://www.nytimes.com/live/2025/01/07/business/meta-fact-checking; see also Andrew Hutchinson, Meta Posts Strong Revenue Results in Q3, Soc. Media Today (Oct. 30, 2024), https://www.socialmediatoday.com/news/meta-posts-strong-revenue-result-q3.
[ii] See About Community Notes on X, X Help Ctr., https://help.x.com/en/using-x/community-notes (last visited Mar. 26, 2024).
[iii] Brian Fung, Twitter Bans President Trump Permanently, CNN Bus. (Jan. 9, 2021, 9:18 AM), https://www.cnn.com/2021/01/08/tech/trump-twitter-ban/index.html.
[iv] Biden v. Knight First Amend. Inst. At Columbia Univ., 141 S. Ct. 1220 (2021).
[v] See id at 1224–25 (Thomas, J., concurring).
[vi] See The Joe Rogan Experience, #2255 – Mark Zuckerberg, Spotify, at 8:35 (Jan. 10, 2025) https://open.spotify.com/episode/3kDr0LcmqOHOz3mBHMdDuV.
[vii] See id. at 8:47.
[viii] Id. at 13:17.
[ix] See Issac & Schleifer, supra note i.
[x] See id.
[xi] See Murthy v. Missouri, No. 23–411 at 3 (2024) (“Officials at the White House, the Office of the Surgeon General, and the Centers for Disease Control and Prevention (CDC) focused on COVID–19 content, while the Federal Bureau of Investigation (FBI) and the Cybersecurity and Infrastructure Security Agency (CISA) concentrated on elections.”).
[xii] Id. at 1.
[xiii] Id.
[xiv] Packingham v. North Carolina, 582 U.S. 98 (2024).
[xv] See Study Finds X’s Community Notes Provides Accurate Responses to Vaccine Misinformation, UC San Diego Today (Apr. 24, 2024), https://today.ucsd.edu/story/study-finds-xs-formerly-twitters-community-notes-provide-accurate-credible-answers-to-vaccine-misinformation. But see Andrew Hutchinson, Reports Find Community Notes is Failing to Address Misinformation on X, Soc. Media Today (Oct. 30, 2024), https://www.socialmediatoday.com/news/reports-find-community-notes-failing-address-misinformation-x-formally-twitter.
