Soon, the United States Supreme Court will release an opinion in NetChoice v. Paxton and Moody v. NetChoice, two controversial—and consequential—social media cases involving laws in Texas and Florida.
It is extremely important for the Court to get this case right. Social media operates as the modern public square. Social media platforms hold themselves out to be a public service, neutral in their administration of their policies. But this simply isn't the case. They routinely engage in censorship of individuals and organizations that hold to ideologies they do not like.
Americans aren't unaware of the problem. Indeed, a majority possess at least some suspicion that social media platforms are likely censoring disfavored political viewpoints.
Social media companies have often targeted conservative users, organizations, and religious messages for censorship. By labeling the messages as "hate" or "misinformation," social media companies silence conservative voices and stunt the free flow of information. These platforms, under the guise of "standards" or "policies," have repeatedly censored, deplatformed, and shadow-banned conservative viewpoints through selective application of ever-changing rules.
As a result, Texas and Florida both passed laws to restore trust and confidence in social media. The laws require that, at a minimum, social media companies be transparent in their content standards. To be clear, these laws do not require companies to platform everyone. They simply require that content standards be even-handedly applied. Want to avoid the law? Simple—stop telling users that your social media platform is a neutrally administered public service and actually acknowledge that it selectively enforces its policies against disfavored viewpoints.
But trying to have their cake and eat it too, social media companies simultaneously claim that they should not be held accountable for the speech of their subscribers and that they should be able to censor speech since the company exercises "editorial control."
One company with first-hand experience of social media's "editorial control" is the Babylon Bee and its news counterpart, Not the Bee.
The Babylon Bee is a website that mocks current culture using satire, humor, and parody. Not the Bee is a Christian news website that highlights accurate news headlines that readers would expect to find in The Babylon Bee. According to a friend-of-the-court brief filed by The Babylon Bee and Not the Bee in the NetChoice cases, in October 2020, Facebook determined that the satire site had "incited violence" when it posted a Monty Python-inspired pieced titled "Senator Hirono Demands [Amy Coney Barrett] Be Weighed Against a Duck to See If She Is a Witch."
Instagram has also engaged in "editorializing" The Babylon Bee. The social media site found that The Babylon Bee had violated community guidelines when it shared a Slate article titled "It's About Time for Us to Stop Wearing Masks Outside" with the comment, "Sane people never did this." Instagram explained that The Babylon Bee had violated community guidelines because its post was spreading "harmful false information" and "hate speech or symbols."
And most recently, The Babylon Bee's Twitter account was suspended in 2022 for "hateful conduct" when it named U.S. Assistant Secretary for Health Dr. Rachel Levine the site's "Man of the Year." Had Twitter not been bought by Elon Musk, The Babylon Bee would likely still be banned from the platform.
One of the pivotal questions the Court will have to address in NetChoice is what standards should govern social media companies. Are they purely private companies or are they a "common carrier"? In other words, do social media companies have their own free speech protections, or are they obligated to respect the free speech rights of their subscribers?
The answer to this question matters to everyone. Should social media companies be able to continue targeting voices they don't agree with, censorship will continue on a large scale. Then what dictates which voices and ideologies are given platforms? The social media companies themselves, and specifically, the executives at the helm of these companies. Tyrants can come from anywhere on the political spectrum. Today, these companies have set out to censor religious and conservative people's speech. Tomorrow, it could be yours.
Archbishop Salvatore Cordileone and Focus on the Family President Jim Daly recently wrote about why protecting religious speech in the public square matters: "The American experiment was founded on, and has always thrived on, the freedom of religious believers to speak, teach, preach, practice, serve and work in peace—not only in private, but in the public square."
It is important that the Supreme Court get this right. Not just for today, but for generations to come. Truth—and our freedom—is at stake.
Erin Smith is Associate Counsel at First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all.
The views expressed in this article are the writer's own.
