As the digital arena continues to grow, the need for judicial review becomes more and more urgent. Social media has seemingly become a ubiquitous part of American culture, allowing users to communicate across the globe by voicing their opinions and sharing ideologies. Applications such as Facebook, and Twitter dominate the internet; where Facebook has 2.9 billion active users and Twitter has 436 million.[i] It is fair to say the Founding Fathers never envisioned the rise of social media when drafting the Constitution, as a result, courts are left with the difficult task of deciphering the First Amendment’s applicability to social media. So, do social media platforms benefit from First Amendment protections? Well, that depends.

In 2021, Twitter shocked the world when it banned former President Trump from its platform for violating its rules and regulations by inciting violence.[ii] Specifically, it triggered the controversial narrative that “big Silicon Valley tech companies” are unconstitutionally censoring conservative and religious views.[iii] As a result, conservative states, such as Florida and Texas, proposed similar legislation in their pursuit of battling censorship on social media platforms.

Florida Governor, Ron DeSantis, pushed legislation that effectively made it unconstitutional for social media platforms with a large following to censor political representatives. The bill proposed a $250,000 fine for each day a social media application censored a political representative’s speech.[iv] On a broader scale, the Texas legislation provided that all digital platforms with more than 50 million active users may be sued by a user that has been censored. The Texas bill defined censorship as acts that “block, ban, delete, remove, deplatform, demonetize, de-boost, regulate, restrict, … or deny equal access or visibility to … or otherwise discrimination against expression.”[v]

Section 230 of the Communications Decency Act allows interactive computer services the ability to moderate their websites and limit their liability.[vi] Further, the Act protects providers who restrict access or material it “considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”[vii] Therefore, Section 230 protects internet providers by allowing them to remove or moderate lewd content while limiting their liability. However, the proposed bills by Florida and Texas seek to place a limit on internet providers.

Consequently, Netchoice, the representatives of Facebook and Twitter, filed a lawsuit challenging the constitutionality of both laws. The company argued that the laws infringed upon First Amendment protections because the platforms are privately owned entities. Currently, a circuit split exists between the Eleventh and Sixth Circuit on the issue.[viii]

The legal question boils down to whether social media platforms function as a common carrier, such as railroads that are subject to regulation, or whether the platforms function as publishers, like a newspaper with the freedom to make editorial judgments entitled to First Amendment protections.[ix]  Historically, common carriers have been defined as entities that serve the public interest, subjecting a business to regulation because it sells services to everyone.[x]

In Netchoice, LLC v. Att’y Gen., Fla., the Eleventh Circuit held that social media platforms are not common carriers, finding the Florida law to be unconstitutional as the platforms have the right to make editorial judgments under the First Amendment.[xi] Yet, in Netchoice, LLC v. Paxton, the Fifth Circuit upheld the Texas law to pass constitutional muster, holding these platforms do in fact function as common carriers and may be regulated.[xii]

Under the Eleventh Circuit analysis, private entities controlling social media platforms are viewed as editors entitled to unrestricted authority in what speech may or may not be posted.[xiii] Whereas under the Fifth Circuit analysis, the same private entities do not have unrestricted authority to monitor what may or may not be posted on the platform due it’s “concentrated control” over an overwhelming unprecedented amount of speech.[xiv]  Clearly the time has come for the Supreme Court to resolve this issue.

The legality of social media is difficult to grasp due to its rapid growth. However, the First Amendment is clear. It states that Congress shall make “no law … abridging the freedom of speech, or of the press….”[xv] Therefore, the framers intended to protect citizens from speech regulation by the government––not by fellow citizens.

The fact that social media platforms are privately owned highlights the issue at its core. The government does not regulate these platforms. The Eleventh Circuit emphasized this point by explaining that because the platforms are not governmentally regulated, American citizens are not required or compelled to engage in these platforms; let alone have any authority to dictate what is posted.[xvi] Ultimately, citizens do not have a constitutional right to use privately owned platforms–it is a voluntary choice.

It may be extremely frustrating to log onto Facebook, an application you have used for years to communicate with your friends, to find out your account was removed, or your post was taken down. However, access to social media platforms requires an acknowledgment of its rules and regulations, which includes the platform’s discretion to moderate content. Analogous to newspapers, which have editorial control in deciding what content may be showcased, social media is no different.

Under the Fifth Circuits ruling, any platform that maintains 50 million active users a month may not moderate the content.[xvii] Social media users in favor of this position may believe this solves the concern that interactive computer services generated by Big Tech companies “polic[e] speech too much,” however, this “solution” is vague and potentially dangerous.

Consider Roblox, a gaming platform that allows users to communicate with each other. The digital platform has 43.2 million daily users, totaling to an astounding 202 million active users a month.[xviii] However, the platform is dominated by children, where 67% of users are under the age of 16, and only 14% of users are over 25 years old.[xix] The salient issue is the age of users who would potentially be subjected to dangerous speech absent content regulation. Although the Texas bill has an exception for preventing the sexual exploitation of children in the face of content moderation, there still may be an issue of bullying between kids on the platform. For example, bullying speech may not be illegal speech; however, it may be harmful to children without the safeguard of content moderation. Following the Fifth Circuit’s holding, owners of Roblox would have to allow all speech that could be potentially dangerous to children.

Accordingly, there is a split between American citizens and the circuits. Some believe social media entities moderate too much speech, while others believe social media entities do not do enough to moderate offensive and false information.[xx] It is important to note there is a distinction between censorship and content moderation.[xxi] In the face of mass confusion between the people and the courts, the Supreme Court must analyze social media and its growth within the First Amendment arena. Still, the Fifth Circuits decision is likely to fail, considering the dangerous outcomes of its blanket holding. Unless the Court or legislatures were to modify Section 230, the Eleventh Circuit’s holding is likely to prevail. As technology quickly expands, judicial review is necessary to avoid First Amendment oversights.

[i] Jason Wise, How Many People Use Twitter In 2022? (New Stats) Earthweb (July 31, 2022), https://earthweb.com/how-many-people-use-twitter/.

[ii] Twitter, Permanent suspension of @realDonaldTrump Blog (Jan. 8, 2021), https://blog.twitter.com/en_us/topics/company/2020/suspension.

[iii] See Netchoice, LLC v. Att’y Gen., Fla., 34 F.4th 1196 (11th Cir. 2022).

[iv] Id.

[v] H. 20, 87th Leg., 2d. Sess. § 7 (Tex. 2021) (enacted).

[vi] 47 U.S.C. § 230.

[vii] Id.

[viii] See Netchoice, LLC v. Att’y Gen., Fla., 34 F.4th 1196 (11th Cir. 2022); see also Netchoice, LLC v. Paxton, 49 F.4th 439 (5th Cir. 2022).

[ix] PBS NewsHour, Supreme Court blocks Texas law preventing social media companies from controlling content, YouTube (June 1, 2022), https://www.youtube.com/watch?v=HPd5U_U0WYk.

[x] See Why It’s a Good Thing That Broadband Isn’t a Common Carrier, NCTA (Jan. 27, 2014) https://www.ncta.com/whats-new/why-its-a-good-thing-that-broadband-isnt-a-common-carrier.

[xi] Netchoice, LLC v. Att’y Gen., Fla., 34 F.4th at 1220–1222.

[xii] Netchoice, L.L.C. v. Paxton, 49 F.4th at 473.

[xiii] See Thomas A. Berry, The Fifth Circuit Gets The Right to Editorial Freedom Very Wrong, Cato Institute (Sep. 23, 2022, 3:59 pm), https://www.cato.org/blog/fifth-circuit-gets-right-editorial-freedom-very-wrong. (arguing that the Eleventh Circuit correctly found that private entities that control what content goes on or off their platform by third parties exercise editorial judgments that are constitutionally protected).

[xiv] See id (explaining that the Fifth Circuit is erroneously compelling social media platforms to host speech regardless of the platform’s rules or regulation because they do not “exercise control or judgment” over the content provided on the forum).

[xv] U.S. Const. amend. I.

[xvi] Netchoice, LLC v. Att’y Gen., Fla., 34 F.4th at 1204.

[xvii] Netchoice, L.L.C. v. Paxton, 49 F.4th at 445.

[xviii] See Brian Dean, Roblox Users and Growth Stats 2022, Backlinko (Oct. 10, 2022), https://backlinko.com/roblox-users.

[xix] Id.

[xx] See Matt Laslo, The Fight Over Section 230–and the Internet as We Know It, Wired (Aug. 13, 2019, 3:18 pm) https://www.wired.com/story/fight-over-section-230-internet-as-we-know-it/.

[xxi] See Jonathan Walker, Content Moderation is Not Synonymous with Censorship Public Knowledge (Nov. 16, 2020) https://publicknowledge.org/content-moderation-is-not-synonymous-with-censorship/.