There’s a history of case law protecting the rights of privately owned publishers and social networks to make their own editorial decisions — including algorithmically sorted content. The U.S. Court of Appeals (11th Circuit) ruling in May 2022, which blocked Florida’s law, stated “while the Constitution protects citizens from governmental efforts to restrict their access to social media…no one has a vested right to force a platform to allow [a citizen] to contribute to or consume social media content.”

However, in a contradictory ruling at the same time, the 5^th Circuit upheld the Texas law, denying private companies’ First Amendment rights. Of note, both circuit courts were comprised of three Republican judges.

If the Supreme Court sides with the 5^th Circuit, thereby forcing social media sites to publish or not publish certain types of speech, in effect the government will ironically be trampling on the First Amendment rights of social media companies. This would set a troubling precedent. Once the government gets involved in making moderation decisions for social platforms, it’s easy to imagine how future lawmakers could abuse such powers — for instance, by forcing social platforms to promote the government’s position in international conflicts or to advocate for or against the validity of election results or the effectiveness of vaccines, depending on the party in power.

Another problematic outcome in this scenario is that some social sites might feel compelled to take a “hands off” approach and cease all moderation entirely, due to their fear of being fined by the government and sued by users. If history is our guide, they would then be overrun with spam, hate speech, pornography, bullying, doxing, violence incitement, and exponentially more misinformation than we see today. Paradoxically, this would make social media unusable for most people regardless of their politics. This was the user experience on “anything goes” sites like 8Chan as well as Secret, whose founder shut the site down and refunded its investors. —The HIll