Can the U.S. government rein in social media?

The Supreme Court is about to consider what limits can be placed on platforms and who should set them

This summer, an obscure lower court judge single-handedly muzzled the federal government when he ordered it to stop pressuring the world’s most influential social media companies to take down posts the government considered threats to public health and election integrity.

The ruling came in July when U.S. District Judge Terry Doughty of Louisiana ordered a halt to what he, a Trump appointee, breathlessly called “arguably the most massive attack against free speech in United States history.”

What Biden administration officials did to trigger this hyperventilation was not, as we’ll see, such a big deal. But the appeals court Doughty answers to supported enough of his sweeping injunction that the case, brought by Republican attorneys general from two states and a handful of private plaintiffs, has gone to the U.S. Supreme Court.

There, it will join two additional cases over online political discrimination that raise the same core questions: What limits should there be on social media, and who should set them? Does any attempt by public authorities to rein them in violate constitutional guarantees of expressive freedom? And if the government cannot interfere in what social media companies do, who can?

The two other social media cases going to the Supreme Court challenge laws in Texas and Florida. They are a mirror image of the Louisiana ruling, which targeted the Biden administration for trying to keep vaccine disinformation and claims of election fraud from reaching millions of social media users.

The Florida and Texas laws authorize those states to stop the platforms from blocking posts on political grounds. They were enacted by Republicans who were furious over the decision of Twitter (now renamed X) and Facebook to suspend President Donald Trump for encouraging the Jan. 6, 2021, assault on the Capitol, and who believe the platforms routinely silence conservatives.

These state laws direct Republican attorneys general to interfere with social media in ways the Louisiana ruling forbids a Democratic presidential administration to even suggest.

There’s plenty of inconsistency here.

For its part, the Biden administration

argues for its right to cajole social media platforms into blocking posts that contradict its medical guidance while it simultaneously argues with no less fervor that letting states meddle in the platforms’ content decisions is unconstitutional.

It’s true that the conduct covered by the Louisiana ruling and the state laws differs in major ways. Biden officials were slapped down for what appears, at worst, to have been energetic insistence. Although the 5th U.S. Court of Appeals in New Orleans — its 16 full-time members including 12 Republicans, six appointed by Trump — found that officials coerced Facebook, Twitter, YouTube and Google with “foreboding, inflammatory, and hyper-critical phraseology”

that was “on-the-whole intimidating,” the bullying looks pretty toothless. The administration noted coercion was alleged “despite the absence of even a single instance in which an official paired a request to remove content with a threat of adverse action — and despite the fact that the platforms declined the officials’ requests routinely and without consequence.”

The state laws are much more aggressive.

The Texas statute permits the state and private citizens to haul media platforms into court if they believe moderation policies prohibit them from posting comments because of their viewpoints.

The Florida law was enacted, Gov. Ron DeSantis declared, to

“fight against (the) big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative.” It forbids social media to block political expression, to bar political candidates or to limit access by journalistic organizations.

Press advocates like me bridle at governmental meddling with media expression, especially when it has nakedly partisan motives and comes with teeth. Even faced with the bedrock duty of protecting the public — and what could be more bedrock than ensuring that people know how to keep themselves safe from a lethal pandemic? — it seems wise to point out to officialdom they have no monopoly on truth; we defend expressive freedom not just because we value divergent opinion, but because it ensures that dissenting truth claims are aired.

Although the Biden administration’s entreaties to media platforms did not seem, to anyone but zealots, to cross the line into strong-arming, it would be good to see a reminder from the court that such a line exists and matters.

So governmental coercion, whether via closed-door pleas or legal prohibitions, is a real issue. But so is media accountability.

We have no choice but to defend vigorously the free speech rights of corporations, as repugnant as that is to liberal sensibilities, since those rights are inextricably linked to our tradition of private ownership of the media. How else would we defend the editorial freedom of the Chronicle or the New York Times if corporations had no such rights?

But when that freedom enables social media barons to unilaterally dictate — thanks to staggering marketplace dominance — the conditions, character, content and limits of public discourse, questions must be raised. If a platform owner decides to expose billions of people to a blinkered, biased and hateful worldview, is that really a problem to allow the market to manage? Are we prepared for the social costs that would impose?

There was little in the decision by the hyper-conservative 5th Circuit Court upholding the Texas law that I agreed with. Still, I was struck by this assertion: “Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.”

For nearly a century this country has enforced rules governing our now archaic broadcast networks, reasoning that the airwaves were a scarce public resource of immense power and had to be regulated responsibly. Rules governing everything from advertising to children, political balance, profanity, tobacco ads and required hours of public service programming were long part of the broadcasting landscape. Regulation was always an imperfect arrangement, but this may be the time to look again at that experience and see what lessons it holds for the internet age.

Manuel Balce Ceneta/Associated Press The U.S. Supreme Court has three cases to consider — from Louisiana, Texas and Florida — about whether government can regulate content on social media platforms.