Free Speech vs. Free Ride: Navigating the Supreme Court’s Social Media Paradox

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2024-10-12 11:00:04

The Supreme Court has an analogy problem. Are social media more like publishers, who have free speech editorial rights and liability for their decisions? Or are they more like common carriers, who serve everyone and hold no liability for what their users post? The need for content moderation inclines the Court toward the publisher analogy2 but this trade-off is hard, so hard that it just sent a second pair of cases back for lower courts to clarify.

Social media firms want the best of both. They want publishers’ freedom to exclude users and control over editorial decisions but common carrier protection from user content liability. They argue the former in Moody v. NetChoicea and NetChoice v. Paxton,b where Florida and Texas sought to prevent them from discriminating against conservative speech. They argue the latter in Twitter v. Taamnehc and Gonzalez v. Google,d where they stand accused of failing to take meaningful action to thwart terrorists who use their services to “recruit members, plan … attacks, [and] issue … threats.” No other industry is so privileged—free to decide how it operates yet free of decision consequences. Unlike the print and broadcast industries, and most others, they do not even incur production costs; you and I as users and content creators do.

This has created an aura of impunity rejected by other nations who face the same conundrum, balancing free speech with freedom from consequence. France arrested Pavel Durov, founder of social media platform Telegram, on charges of facilitating drug trafficking, money laundering, distribution of child sexual abuse material (CSAM), and refusal to provide data on perpetrators to authorities.9 Japan is crafting laws to hold Facebook accountable for real ads with deepfake celebrities scamming users from their savings.7 Brazil blocked access to X (Twitter) for failing to shut down accounts that threaten judges, promote insurrection, and deny the last election.8 Like Telegram, X (Twitter) had ignored judicial requests for user data. Legitimate concerns argue for protecting speech against political interference yet no country’s laws, not even the U.S. First Amendment, protect speech used in the commission of crime.