The United States Supreme Court heard four hours of oral arguments on Monday to decide whether laws passed by Texas and Florida requiring social media companies, like Facebook, YouTube, X, TikTok, Reddit, and Instagram, not to stifle conservative speech are constitutional.
At issue are deep, constitutional provisions, about the rights of various parties, never before adjudicated at the Supreme Court.
The first right is that of the various social media platforms like Facebook, Twitter, YouTube, Reddit, TikTok, Instagram, and others. Each is a private for-profit company entitled to adopt terms of service, conditions, and rules that it sees fit. Defining these rules is a First Amendment right of these private platforms. Subscribers are at liberty to not sign up, but if they do, they agree to the terms of service.
Then, there are also First Amendment rights for those participating on these platforms. Who should prevail if a conservative voices an opinion not within a platform’s safety and trust policies?
The Biden administration is also a party in the case, supporting the technology platforms that have been doing the Democrats’ bidding by restricting conservative voices.
Texas and Florida, both run by conservative Republican governors, passed two separate pieces of legislation and signed them into law. Both state that the platforms are forbidden to operate in their vast states if the platforms limit conservative speech. In Florida, the rule is even more aggressive. No candidate running for office, any office in Florida, can have their account suspended on any of these platforms. This rule was an apparent response to how all the platforms suspended former president Trump’s account after January 6, justifying their moves by saying that Trump’s speech was dangerous and could harm people. Both laws allow the states to impose fines and penalties on the platforms if they are deemed to have violated the rules.
The technology companies argued that the speech on their platform was similar to that in a newspaper. When a reader comments on an article or writes a letter to the editor, his viewpoints are first scrutinized by a staffer who will verify that the comments are permissible. The technology platforms maintained that their safety and trust committees perform tasks similar to the bouncer on a radio show by engaging in “editorial discretion and expressive conduct.”
But this comparison is grossly misleading on two counts. First, a platform like Facebook doesn’t create content; it only curates it after sourcing it from other organizations. Further, all non-sourced content on the technology platforms – the vast majority of content – depends upon text, photos, and videos uploaded by subscribers. In a sense, a technology platform is more like a “conduit” – where it merely serves to host speech and content created by others. In this situation, how can the technology companies assert that they engage in editorial discretion and expressive conduct?
Second, Congress considered the “conduit” nature of the platforms’ business when it granted them relief under Section 230.
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230).
For those who find the above text too cryptic, the Electronic Frontier Foundation comes to the rescue: Online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do. In other words, social media outlets such as Google, Facebook, YouTube, and Twitter are not lawfully liable even if someone using these platforms in some manner plans and delivers bodily injury to someone else.
So, how can technology companies both assert that they are entitled to Section 230 protections but also say that they engage in “editorial discretion and expressive conduct?”
Indeed, Justice Clarence Thomas quizzed the technology companies on this very point.
JUSTICE THOMAS: And the argument under Section 230 has been that you’re merely a conduit …Now you’re saying that you are engaged in editorial discretion and expressive conduct. Doesn’t that seem to undermine your Section 230 arguments?
MR. CLEMENT (speaking for the technology companies): …My understanding is that my clients have consistently taken the position that they are not mere conduits.
So desperate are the technology platforms that they are willing to sacrifice Section 230 protections so that they can censor speech with which they disagree.
But thanks to Elon Musk, the Supreme Court now knows what a vibrant social media platform can do to citizen debate. All views are now permitted on X, formally Twitter, without prejudice or bias. Musk’s definition of free speech is to allow someone we don’t like to say something we don’t like, as long as what is said is legal. For instance, advocating for terrorism is illegal, so it shouldn’t be permitted. The remedy for wrong speech is not censorship but more right speech – a concept Musk has implemented through “Community Notes,” when the original post stays and experts who disagree with the author provide information that users can see for themselves.
The platforms’ assertion that they engage in editorial discretion and expressive conduct is nonsense. Henry Whitaker, the Solicitor General of Florida, made a point:
We certainly agree that a newspaper, book, and bookstore engage in inherently expressive conduct. And our whole point is that these social media platforms are not like those.
Florida’s and Texas’s laws do not regulate free speech on the platforms but mandate that all speech should be permitted without bias. The subscribers’ First Amendment rights should trump the platforms’ First Amendment rights because the technology platforms do not originate content like newspapers or books.
The Supreme Court has a golden opportunity to elevate technology platforms to Musk’s high bar of free speech. The Court should uphold the Florida and Texas laws and help restore vibrant debate to the modern public square on all platforms. Like X did.
TIPP Takes
Geopolitics, Geoeconomics, And More
1. Hamas Reviewing Paris Truce Proposal With 40-Day Pause, Hostage Exchange, Aid Entry – Reuters
Palestinian militant group Hamas has received a draft proposal from Gaza truce talks in Paris, which includes a 40-day pause in all military operations and the exchange of Palestinian prisoners for Israeli hostages at a ratio of 10 to one, a senior source close to the talks said.
Under the proposed ceasefire, the source said that hospitals and bakeries in Gaza would be repaired, 500 aid trucks would enter the strip each day, and thousands of tents and caravans would be delivered to house the displaced.
2. Biden Hopes To Have A Ceasefire In Israel-Hamas Conflict By March 4 – Reuters
“My national security adviser tells me that we’re close. We’re close. We’re not done yet. My hope is by next Monday, we’ll have a ceasefire,” Biden told reporters.
The presence of both sides for so-called proximity talks – meeting mediators separately but in the same city – suggested negotiations were further along than at any time since a big push at the start of February when Israel rejected a Hamas counter-offer for a four-and-a-half-month truce.
3. Palestinian PM Shtayyeh Hands Resignation To Abbas Over Gaza ‘Genocide’ – Al Jazeera
Palestinian Prime Minister Mohammad Shtayyeh has announced the resignation of his government, which rules parts of the occupied West Bank, due to the escalating violence in the occupied territory and the war in Gaza.
“The decision to resign came in light of the unprecedented escalation in the West Bank and Jerusalem and the war, genocide, and starvation in the Gaza Strip,” said Shtayyeh, who submitted his resignation to Palestinian Authority (PA) President Mahmoud Abbas on Monday.
4. Saudi FM Prince Faisal Calls Out Intl Community For Double Standards, Silence On Gaza – Al Arabiya
The top Saudi diplomat issued a strong diatribe against the international community for its silence on the Gaza war as the UN’s top human rights body opened a new session.
Citing the Israeli killing of over 30,000 Palestinians in Gaza since the war on Hamas began last October, Prince Faisal bin Farhan said no institutional dialogue could be taken seriously if the situation in Palestine was overlooked. The remarks were made at the 55th session of the Human Rights Council in Geneva.
5. Saudi Arabia Denies Media Reports That Minister Met Israeli Counterpart – Al Arabiya
Images and videos circulated showing Saudi Minister of Commerce Majid bin Abdullah Al-Qasabi with Israel’s economy and industry minister at the World Trade Organization (WTO) summit in Abu Dhabi.
Israeli media followed this report, claiming that the two discussed peace between Saudi Arabia and Israel. However, an official Saudi source rejected the Israeli claims and said that an individual approached the Saudi minister as he was standing with a Nigerian minister.
6. France’s Macron Does Not Rule Out Europeans Sending Troops To Ukraine – Al Jazeera
“There’s no consensus today to send in an official, endorsed manner troops on the ground. But in terms of dynamics, nothing can be ruled out,” French President Emmanuel Macron said.
Macron’s comments came after some 20 European leaders gathered in Paris to send Russian President Vladimir Putin a message of European resolve on Ukraine and counter the Kremlin’s narrative that Moscow was bound to win a war now in its third year.
7. Navalny Was To Be Freed In Prisoner Swap, Ally Says – D.W.
Russian authorities were close to swapping late opposition leader Alexei Navalny, his ally Maria Pevchikh said.
Pevchick said in a YouTube video that Navalny and two U.S. nationals were due to be exchanged for a Russian national serving a life sentence in Germany for murder.
She did not reveal the identity of the two U.S. citizens she said would have also been freed. They are, however, believed to be Evan Gershkovich, a reporter for the Wall Street Journal, and Paul Whelan, a former U.S. Marine.
8. Hungary Ratifies Sweden’s NATO Bid, Clearing Final Obstacle To Membership – Al Jazeera
Hungary’s parliament has voted to ratify Sweden’s bid to join NATO, ending more than 18 months of delays that have frustrated the alliance as it seeks to expand in response to Russia’s war on Ukraine.
Monday’s vote culminated in months of wrangling by Hungary’s allies to persuade its nationalist government to lift its block on Sweden’s membership.
9. Denmark Ending Nord Stream Explosion Investigation – UPI
Denmark is closing its investigation into the explosions that damaged the two Nord Stream 1 and 2 pipelines in 2022, with Danish officials calling their investigation “complicated and extensive.”
The news comes less than a month after Swedish officials announced they were wrapping their probe into the explosions that damaged the two natural gas pipelines.
10. Satellite Images Reveal Floating Barrier At Mouth Of Disputed Atoll In South China Sea – Reuters
Satellite images of the hotly disputed Scarborough Shoal in the South China Sea show a new floating barrier across its entrance, near where Philippine ships and China coast guard vessels have had frequent run-ins.
One of the images taken by Maxar Technologies showed the barrier blocking the mouth of the shoal, where the Chinese coast guard last week claimed to have driven off a Philippine vessel “illegally intruding” into Beijing’s waters.
11. Foreign Investors Step Up Purchases Of Chinese Government Bonds – Nikkei Asia
Foreign investors have added to their holdings in China’s domestic bond market for a fifth month, seeking to profit from deflationary pressures in Asia’s largest economy.
According to official data published, net purchases of yuan-denominated government bonds by foreign investors hit 203 billion yuan ($28.2 billion) in January. It was the fourth-highest monthly inflow since the July 2017 opening of Bond Connect, which enables offshore investors to buy onshore China bonds. The third-biggest inflow came in November.
12. Hong Kong’s Bad Debt On The Rise In Bleak Economy – RFA
In a further sign of Hong Kong’s economic woes, the city’s biggest banks are recording a surge in overdue loans amid the broader contraction of tens of billions of dollars in corporate lending.
“Some analysts in the accounting industry point out that the bankruptcies will not peak until the middle of this year,” financial commentator Ngan Po Kong said, adding that Hong Kong’s economic recovery lies in the rebound of China’s.
13. Five Chinese Coast Guard Ships Enter Taiwan Water Near Frontline Islands – Reuters
Five Chinese coast guard ships entered prohibited or restricted waters around Taiwan’s frontline islands of Kinmen but left shortly after being warned away, a Taiwan minister said amid a continued rise in tensions with Beijing.
China’s coast guard this month began regular patrols around the Taiwan-controlled Kinmen islands, which are close to China’s coast after two Chinese nationals died trying to flee Taiwan’s coast guard after their boat entered prohibited waters.
14. After Decades Touting Openness, Singapore Sees Foreign Meddling Threat – Al Jazeera
Singapore invoked its foreign interference law for the first time by designating Chan Man Ping Philip, a 59-year-old naturalized citizen, as a “politically significant person,” weeks after authorities flagged their intention to designate the businessman.
While the government did not say which country’s interests Chan allegedly tried to advance in Singapore, the businessman and real estate developer is well-known for advocating China’s perspective.
The city-state’s invocation of foreign interference law highlights the challenges of maintaining an open and highly globalized economy.
15. IAEA Increasingly Concerned Over Iran’s Capabilities To Produce Nuclear Weapons – AFP
The UN nuclear watchdog has voiced growing concern over Iran’s ability to build nuclear weapons, fueled by public statements in the country, a confidential report seen by AFP said.
Tensions between Iran and the International Atomic Energy Agency (IAEA) have repeatedly flared up since a 2015 deal curbing Tehran’s nuclear program in exchange for sanction relief fell apart.
16. Iran Should Hide Identity Of Next Supreme Leader To Avoid U.S. Assassination: Cleric – Al Arabiya
Mohammad-Ali Mousavi-Jazayeri, a member of Iran’s Assembly of Experts, said in an interview on an Iran-based website that any perceived candidate for the position could become a target for assassination by the U.S. and Israel.
“Therefore, [the identity of the next supreme leader] is 100 percent confidential and should not be discussed in any way,” Mousavi-Jazayeri said.
The Assembly of Experts is tasked with electing, overseeing, and, if required, removing the supreme leader, who wields ultimate authority over all state affairs in Iran.
17. India Evaluates $21 Bn Semiconductor Proposals To Boost Chip Manufacturing Industry – WION
According to a Bloomberg report, the reviewed proposals encompass diverse ventures from domestic conglomerates and international players.
Tower Semiconductor Ltd. of Israel has put forth a substantial proposal amounting to $9 billion, intending to establish a semiconductor plant in Gujarat, the home state of Prime Minister Narendra Modi. Likewise, India’s Tata Group has presented an $8 billion plan for a chip manufacturing unit in the same region.
18. Peru Declares Health Emergency In Most Provinces As Dengue Cases Soar – A.P.
Peru declared a health emergency in most of its provinces due to a growing number of dengue cases occurring at a time of higher than usual temperatures caused by the El Nino weather pattern.
According to the nation’s health ministry, the number of dengue cases registered during the first seven weeks of this year is twice as high as during the same period in 2023 – with more than 31,000 cases recorded.
19. New Zealand Set To Scrap World’s First Law Banning Tobacco Sales – Reuters
Set to take effect from July, the toughest anti-tobacco rules in the world would have banned sales to those born after Jan. 1, 2009, cut nicotine content in smoked tobacco products, and reduced the number of tobacco retailers by more than 90%.
Associate Health Minister Casey Costello of the newly elected coalition government said it was committed to reducing smoking but was taking a different regulatory approach to discourage the habit and reduce the harm it caused.
20. Earbuds, Headphones Linked To Hearing Damage Among Kids – UPI Health
A new report finds that many younger children could permanently damage their hearing by blasting loud music on their earbuds and headphones.
According to the University of Michigan Health C.S. Mott Children’s Hospital National Poll on Children’s Health, two in three parents say that their child between the ages of 5 and 12 regularly pop listening devices in their ears.
Prolonged or extreme exposure to high noise volumes can result in hearing loss or tinnitus, which is a constant ringing in the ears, Dr. Susan Woolford, a pediatrician at the University of Michigan, said.
Republished with permission from TIPP Insights
