Perspective: Let public opinion, not the Supreme Court, curb social media companies

First Five by the Freedom Forum Institute

Oct 6, 2022

The Supreme Court has agreed to take up a case challenging social media companies’ right to moderate content on their platforms. Freedom Forum senior fellow Gene Policinski explores the First Amendment implications of such a rewriting of internet rules.

Senior Fellow for the First Amendment | Freedom Forum

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The U.S. Supreme Court will now step into the national debate about regulating social media, a move that might be popular but is the wrong one at the wrong time – and maybe for all time.

The court has agreed to hear a challenge to Section 230 of the Communications Decency Act, seeking to limit – or even remove – a federal law that gives tech companies sweeping immunity from lawsuits over user-generated content and how social media company algorithms surface that posted content.

The justices will consider a lawsuit against Google brought by the family of a man killed in a 2015 terrorist attack in Paris. The family contends that Google, which owns YouTube, was partially responsible because it had allowed the terrorist group to post radicalizing videos that appeared in some users’ video feeds, along with the site’s algorithm-generated recommendations to other users.

Polls show that we want Big Tech to step up more to battle misinformation and disinformation and to answer critics who say social media outlets favor a particular side on social issues.

But the likely outcome from any significant weakening of Section 230 and social media First Amendment rights by the high court will be equally significant limits on our free speech and free press rights. What company would open its electronic turf to virtually anyone, knowing that a single post among millions each day from users could bring an expensive lawsuit?

Better that we hold those companies accountable in the courts of public opinion and the commercial marketplace than in courts of law.

When we exercise our own free speech rights, we step up as the kind of engaged citizens envisioned by the founders when they enacted such strong bulwarks around our core freedoms.

Deal with dissatisfaction by not using Facebook or Twitter or Google or Truth Social, for that matter. If you don’t like how a platform deals with abusive posts or blatant propaganda or fails to act on deliberate misinformation, step up and support alternatives or start-up competitors.

Demand that tech companies find better ways to implement transparent standards that they – not the government – create to apply to the massive amounts of posts they receive. Delete your account if the online operation won’t be transparent about how their algorithms or human moderators make decisions about what, when and who to suspend or block.

These First Amendment-friendly approaches don’t require government intrusion into the speech and press rights of private companies.

If the high court does decide to amend Section 230, let’s hope it tweaks rather than trashes. Some options for limited change could include allowing liability for intentional editorial decisions by Big Tech, like failing to act on clearly dangerous misinformation regarding public health or safety.

Decisions to permit or failure to prevent or remove immediately abominations such as live or recorded beatings, sexual assaults or salacious posts of thrill killings might be made subject to civil lawsuits over “intentional infliction of emotional distress” by family members or even the public at large.

Still, even such relatively limited changes seem at odds with the core principle that private companies, like individuals, have First Amendment rights.

Social media and new technologies provide us with unprecedented ways to connect with others, to make our individual opinions known even when those views are controversial or even offensive to some, and to participate in the self-governance essential to our democratic republic.

Sweeping aside broad protections for Big Tech in the name of fairness or transparency may seem like a good way to correct some social media “wrongs,” but not if it ushers in an era of new limitations or lost opportunities for our individual rights.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum. He can be reached at