censorship

Freedom to Moderate? Circuits Split over First Amendment Interpretation

Annelise Couderc, MJLST Staffer

Recently, the Florida and Texas Legislatures passed substantively similar laws which restrict social media platforms’ ability to moderate posts expressing “viewpoints,” and require platforms to provide explanations for why they chose to censor certain content. These laws seemingly stem from the perception of conservative leaning users that their views are disproportionately censored, despite evidence showing otherwise. The laws are in direct conflict with the current prevalent understanding of social media’s access to First Amendment protections, which include the right to moderate content, an expression of free speech.

While the 11th Circuit declared the Florida law unconstitutional for violating social media platforms’ First Amendment rights in May, only four months later the 5th Circuit reinstated the similar Texas law without explanation, overturning the previous injunction made by the U.S. District Court for the Western District of Texas. On September 16, 2022, the 5th Circuit released its full decision explaining its reinstatement of the censorship statute, immediately raising constitutional alarm bells in the news. Following this circuit split, social media platforms must navigate a complicated legal minefield. The issue is likely to be resolved by the Supreme Court in response to Florida’s petition of the 11th Circuit’s May decision.

Social Media Platforms Are Generally Free to Moderate Content

The major social media platforms all have policies which ban certain content, or at least require a sensitivity warning to be posted before viewing certain content. Twitter restricts hate speech and imagery, gratuitous violence, sexual violence, and requires sensitive content warnings on adult content. Facebook sets Community Standards and YouTube (a Google subsidiary) sets Community Guidelines that restrict similar content.[1] Social media corporations’ access to free speech protections were well understood under settled Supreme Court precedent, and were further confirmed in the controversial 2010 Supreme Court decision Citizens United establishing the rights of corporations to make political donations as a demonstration of free speech. In sum, Courts have generally allowed social media platforms to moderate and censor sensitive content as they see fit, and platforms have embraced this through their establishment and enforcement of internal guidelines. 

Circuits Split Over First Amendment Concerns

Courts have generally rejected arguments challenging social media platforms’ ability to set and uphold their own content guidelines, upholding social media platforms’ free speech protections under the First Amendment. The 5th Circuit’s rejection of this widely accepted standard has created a circuit split which will lead to further litigation and leave social media platforms uncertain about the validity of their policies and the extent of their constitutional rights.

The 11th Circuit’s opinion in May of this year was consistent with the general understanding of social media’s place as private businesses which hold First Amendment rights. It rejected Florida’s argument that social media platforms are common carriers and stated that editorial discretion by the platforms is a protected First Amendment right.[2] The Court recognized the platforms’ freedom to abide by their own community guidelines and choose which content to prioritize as expressions of editorial judgment protected by the First Amendment.[3] This opinion was attacked directly by the 5th Circuit’s later decision, challenging the 11th Circuit’s adherence to existing First Amendment jurisprudence. 

In its September 16th opinion, the 5th Circuit refused to recognize censorship as speech, rejecting the plaintiff’s argument that content moderation was a form of editorial discretion (a recognized form of protected speech for newspapers).[4] The court also invoked common carrier doctrine—which empowers states to enforce nondiscriminatory practices for services that the public uses en masse (a classification that the 11th Circuit explicitly rejected)—, embracing it in the context of social media platforms.[5] Therefore, the court held with “no doubts” that section 7 of the Texas law—which prevents platforms from censoring “viewpoints” (with exceptions for blatantly illegal speech provoking violence, etc.) of users—was constitutional.[6] Section 2 of the contested statute, requiring social media platforms to  justify and announce their moderation choices, was similarly upheld as being a sufficiently important interest of the government, and not unduly burdensome to the businesses.[7] The law allows individuals to sue for enforcement. 

The Supreme Court’s Role and Further Implications

Florida, on September 21st, 2022, petitioned for a writ of certiorari asking the Supreme Court to review the May 2022 decision. The petition included reference to the 5th Circuit opinion, calling for the Supreme Court to weigh in on the Circuit split. Considering recent Supreme Court decisions cutting down Fourth and Fifth amendment rights, it is anticipated that First Amendment rights of online platforms may be next.

Although the Florida and Texas laws involved in these Circuit Court decisions were Republican proposed bills, a Supreme Court decision would impact blue states as well. California, for example, has proposed a bill requiring social media platforms to make public their policies on hate speech and disinformation. A decision in either direction would impact both Republican and Democratic legislatures’ ability to regulate social media platforms in any way.

Notes

[1] Studies have found that platforms like YouTube may actually push hateful content through their algorithms despite what their official policies may state.

[2] NetChoice, LLC v. AG, Fla., 34 F.4th 1196, 1222 (11th Cir. 2022).

[3] Id. at 1204.

[4] Netchoice, L.L.C. v. Paxton, No. 21-51178, 2022 U.S. App. LEXIS 26062, at *28 (5th Cir. Sep. 16, 2022).

[5] Id. at 59.

[6] Id. at 52.

[7]  Id. at 102.


Censorship Remains Viable in China– But For How Long?

by Greg Singer, UMN Law Student, MJLST Managing Editor

Thumbnail-Greg-Singer.jpgIn the west, perhaps no right is held in higher regard than the freedom of speech. It is almost universally agreed that a person has the inherent right to speak their mind as he or she pleases, without fear of censorship or reprisal by the state. Yet for the more than 1.3 billion currently residing in what is one of the oldest civilizations on the planet, such a concept is either unknown or wholly unreflective of the reality they live in.

Despite the exploding amount of internet users in China (from 200 million users in 2007 to over 530 million by the end of the first half of 2012, more than the entire population of North America), the Chinese Government has remained implausibly effective at banishing almost all traces of dissenting thought from the wires. A recent New York Times article detailing the fabulous wealth of the Chinese Premier Wen Jiabao and his family members (at least $2.7 billion) resulted in the almost immediate censorship of the newspaper’s English and Chinese web presence in China. Not stopping there, the censorship apparatus went on to scrub almost all links, reproductions, or blog posts based on the article, leaving little trace of its existence to the average Chinese citizen. Earlier this year, the Bloomberg News suffered a similar fate, as it too published an unacceptable report regarding the unusual wealth of Xi Jinping, the Chinese Vice President and expected successor of current President, Hu Jintao.

In “Forbidden City Enclosed by the Great Firewall: The Law and Power of Internet Filtering in China,” published in the Winter 2012 version of the Minnesota Journal of Law, Science & Technology, Jyh-An Lee and Ching-Yi Liu explain that it is not mere tenacity that permits such effective censorship–the structure of the Chinese internet itself has been designed to allow the centralized authority to control and filter the flow of all communications over the network. Even despite the decentralizing face of content creation on the web, it appears as though censorship will remain technically possible in China for the foreseeable future.

Yet still, technical capability is not synonymous with political permissibility. A powerful middle class is emerging in the country, with particular strength in the large urban areas, where ideas and sentiments are prone to spread quickly, even in the face of government censorship. At the same time, GDP growth is steadily declining from its tremendous peak in the mid-2000s. These two factors may combine to produce a population that has the time, education, and wherewithal to challenge a status quo that will perhaps look somewhat less like marvelous prosperity in the coming years. If China wishes to enter the developed world as a peer to the west (with an economy based on skilled and educated individuals, rather than mass labor), addressing its ongoing civil rights issues seems like an almost unavoidable prerequisite.


Censorship, Technology, and Bo Xilai

by Jeremy So, UMN Law Student, MJLST Managing Editor

Thumbnail-Jeremy-So.jpgAs China’s Communist party prepares for its once-a-decade leadership transition, the news has instead been dominated by the fall from power of Bo Xilai, the former head of the Chongching Communist Party and formerly one of the party’s potential leaders. While such a fall itself is unusual, the dialogue surrounding Bo’s fall is also remarkable–Chinese commentators have been able to express their views while facing only light censorship.

This freedom is remarkable because of the Chinese government’s potential control over the internet, which was recently outlined by Jyh-An Lee and Ching-Yi Liu in “Forbidden City Enclosed by the Great Firewall: The Law and Power of Internet Filtering in China” recently published in the Minnesota Journal of Law, Science & Technology. Lee and Liu explain how early on in the internet’s development, the Chinese government decided to limit a user’s ability to access non-approved resources. By implementing a centralized architecture, the government has been able to implement strict content filtering controls. In conjunction with traditional censorship, the Chinese government has an unprecedented amount of control over what can be viewed online.

Lee and Liu argue that these technological barriers rise to the level of de facto law. Within this framework, the Chinese government’s history of censorship indicates that there are rules against criticizing the party, its leaders, or its actions.

Chinese internet reactions to the Bo Xilai case are notable because thy have included criticism of all three. Posts expressing differing opinions, including those criticizing the government’s reaction and those supporting the disgraced leader, have not been taken down. Such posts have remained online even while commentary on China’s next leader, Xi Jinping, has been quickly taken down. Given the Chinese government’s potential control and past use of those controls, the spread of such dissent must be intentional.

Whether this is part of a broader movement towards more openness, a calculated response by the party, or a failure of Chinese censorship technology remains to be seen. Regardless, the changing nature of the internet and technology will force the Chinese government to adapt.