How Free Is Your Speech on Social Media? Reconciling the Circuit Split Created by the Eleventh and Fifth Circuit's Decisions on Anti-censorship Laws Governing Social Media Platforms

• Jurisdiction: United States,Federal
• Citation: Vol. 74 No. 4
• Publication year: 2023

How Free is Your Speech on Social Media? Reconciling the Circuit Split Created by the Eleventh and Fifth Circuit's Decisions on Anti-Censorship Laws Governing Social Media Platforms

Stella Preston

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How Free is Your Speech on Social

Media? Reconciling the Circuit Split Created by the Eleventh and Fifth Circuit's Decisions on Anti-Censorship Laws Governing Social Media Platforms Stella Preston^*

I. Introduction

If you were to walk up to a random person on the street and ask to look at their cell phone, it is almost guaranteed that you would find one or more social media applications (apps) installed. In fact, according to a 2021 study conducted by Pew Research Center, around 72% of the adult population within the united States uses some form of social media.¹ Some of the most notoriously known and popularly used social media apps include Facebook, Twitter, Instagram, and YouTube.² At a fundamental and foundational level, social media is used as a means of communication between people and companies. Merriam-Webster defines social media as "forms of electronic communication (as Web sites) through which people create online communities to share content (as information, personal messages, and videos)."³ It provides individual

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users and third parties a platform to exercise their First Amendment right to free speech by enabling them to communicate with others and make posts that represent their own words, thoughts, feelings, and beliefs. And, significantly, it is also a trendy way for Americans to receive their news and keep up to date with government officials.

From the outside looking in, it appears that a social media platform is just that—a platform. It is a neutral forum where private actors and third parties can post their thoughts, feelings, and concerns. However, the United States currently faces the dilemma of whether social media platforms are private entities entitled to First Amendment protection of free speech. In NetChoice, LLC v. Attorney General, Florida,⁴ the United States Court of Appeals for the Eleventh Circuit held that social media companies are considered private actors that engage in their own types of speech and expression, namely content-moderation and editorial judgment, and are thus entitled to First Amendment protection.⁵ Conversely, in NetChoice, LLC v. Paxton,⁶ the United States Court of Appeals for the Fifth Circuit held that Texas permissibly classified social media platforms as common carriers, and are thus not entitled to the same First Amendment protection that private entities are afforded.⁷

This Article will begin by examining the evolution of the relationship between different media types and the First Amendment's free speech doctrine. Additionally, it will explore the circumstances surrounding Florida's enactment of two provisions of Senate Bill 7072,⁸ and Texas's enactment of House Bill 20.⁹ Further, this Article will discuss the circuit split created by the NetChoice I and NetChoice II decisions. This circuit split will likely spark the Supreme Court of the United States to address the underlying question presented by both cases within the coming years. Ultimately, this Article will argue that the Supreme Court should rule similarly to the Eleventh Circuit and hold that social media platforms are private entities entitled to First Amendment protections.

II. Background Information on Social Media and First Amendment Principles

The importance of social media in today's age cannot be overstated, as most of the United States' population uses some form of social media.¹⁰

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While the reason for using social media can vary from person to person, of particular importance here is the increasing use of social media in American news and politics. In 2021, about 48% of adults in the United States said they "often" got their news directly from social media—namely from Facebook, YouTube, Twitter, and Instagram.¹¹ Following or subscribing to news channels, governmental entities, and political figures allows users quick and instant access to worldwide news. Also, social media's ability to facilitate quick and effective communication can be a tremendous aid for mobilizing important social and political movements within the United States and across the world.¹² Internet freedom has been an essential cornerstone of Americans' constitutional right to freedom of speech and expression in and of itself. It allows individuals the freedom of access to information, the ability to post their own content for the public to see, and the ability to communicate freely with other users.¹³ These characteristics of the Internet and social media make it easier for different social and political movements to work together to create change.

Social media has had an incredible effect on American political conversation and participation. President Barrack Obama's 2008 presidential campaign was the first real instance of a political figure utilizing social media to gain popularity and engage the public.¹⁴ His campaign utilized many different types of internet media and social media, including Twitter, Facebook, Myspace, customized websites, and cell phone apps.¹⁵ The campaign aimed to mobilize his supporters, enhance political participation, and encourage Americans to vote in the 2008 presidential election, which it evidently accomplished with his successive victories in 2008 and 2012.¹⁶

More recently, President Donald Trump made extensive use of his social media to garner a large and enthusiastic following during his 2016 presidential campaign. While Donald Trump was a well-known individual before he ran for president, a "celebrity" some might say, his campaign garnered him a much greater following on social media. For instance, in 2015, Donald Trump had around 4.2 million followers on

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Facebook, but that number increased to about 12.35 million by election day in 2016.¹⁷ As we all know, Donald Trump won the 2016 presidential election, and his enormous social media presence and following likely contributed to that. In a study by Tow Center, the social media activity of both his and Hillary Clinton's campaigns on Twitter were examined. It was determined that there was significantly more buzz about Trump than Clinton during the last four months of their campaigns, based on their signature "hashtags," #Imwithher and #MAGA.¹⁸ Thus, social media is a crucial way for political figures to not only reach more voters and constituents but to campaign their image to millions of individuals that they may not have been able to reach without their social media presence.¹⁹

Over the past few years, political figures and candidates have started using social media not only to campaign and post political ads but to keep in touch with their constituents.²⁰ For the most part, this has been a good thing because it opens up the line of communication between political figures and their followers or subscribers. However, social media apps are popularly known for becoming "echo-chambers" because the algorithms they use tailor the content shown to the specific user's likes and preferences. For users, social media platforms can become "ideologically congruent and homogenous environments in which political views are not debated but instead reinforced and amplified thus paving the way to increased polarization."²¹ Thus, when it comes to news and politics, social media sites tend to repeat and amplify an individual's political beliefs, "and dissenting opinions are screened out into homogenous networks."²² This can be problematic, but nonetheless, millions of Americans digest some form of social media daily as it has become a staple in day-to-day life.

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A. First Amendment's Protection of Free Speech

The freedom of speech is one of the most important freedoms that an individual in the United States can enjoy. In fact, the Framers of the United States Constitution felt it was so vital that they penned it into the First Amendment of the Bill of Rights, along with many other vital freedoms. It reads: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."²³

In the United States' constitutional jurisprudence, the importance of the First Amendment has been defended time and time again. When an enacted law invokes the First Amendment's protection of free speech, there are two different scrutiny levels that courts will use to determine if the law is unconstitutional or not—strict scrutiny and intermediate scrutiny. Generally speaking, any law that is content-neutral in its regulation of speech or expression is subject to intermediate scrutiny, while a law that is content-based will be subject to strict scrutiny.²⁴ Intermediate scrutiny looks at a content-neutral law to determine whether the law is sufficiently tailored to serve an important government interest,²⁵ whereas strict scrutiny looks at a content-based law to determine whether the law is "narrowly tailored to promote a compelling Government interest [and i]f a less restrictive alternative would serve the Government's purpose . . . ."²⁶ Regardless of the scrutiny level used, the court must ensure that laws are not passed that violate the First Amendment's right to free speech.

1. Purpose

When it came time for the American colonists to establish a new form of government apart from their previous British rulers, the Framers knew that free speech needed to be at the forefront of the United States Constitution. It is thought that the Framers took some of their free speech ideals from the philosophy and scholarship of Sir William Blackstone, an English spokesperson and advocate for free speech.²⁷ In one of Blackstone's famous passages, he explains:

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The liberty of the press is indeed essential to the nature of a free

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