A Real Clear Politics Poll found that censorship has become a partisan issue, just as the U.S. Supreme Court is set to review two cases this session that could change online censorship laws as Americans know it. The Supreme Court is being asked to reinterpret the First Amendment for the digital age.
The poll found 52% of Democrats, compared to 33% of Republicans, believe the government has a right to censor social media content. According to 74% of Republicans, speech should be legal under any circumstances, while 47% of Democrats felt the same way. Meanwhile, 34% of Democrats said Americans have too much freedom and 46% of Republicans said Americans have too little freedom.
According to the poll results, Democrats were found more likely to favor the government’s involvement in policing free speech in the name of national security or public safety. Republicans were more likely to view the government’s involvement as interference.
The debate over censorship is evolving and social media has only intensified the discussion.
While Big Tech is now a pervasive part of Americans’ daily lives, it has a relatively short history. Facebook launched in 2004, YouTube in 2005, Twitter in 2006 and Instagram in 2010. The law which provides the framework for content moderation rules for social media was created before these platforms even existed in 1996, and it’s called the Communications Decency Act. The most relevant section of the act is Section 230.
The law largely protects companies from being responsible for what other people post on their platform and it gives those platforms the discretion over what they want to do with what people post.
An early test of moderation policy came in the form of a public execution posted on YouTube.
One year after YouTube’s launch, a video surfaced on the platform that showed the hanging of Iraqi President Saddam Hussein. The amateur video was secretly captured on a cellphone and posted to YouTube 16 years ago and can still be found on the platform today.
There was backlash over the video being public given its graphic and violent nature. Google’s deputy general counsel had final say over whether the video needed to be censored and ultimately decided that the video had historical value and should remain on the platform.
Two years later, there was another early censorship controversy. In 2008, Facebook took down breastfeeding photos for violating its rules against nudity. After an uproar and protest outside of its headquarters, Facebook reversed course and revised its policies.
Fast forward to the 2016 presidential election, Facebook was again in the crosshairs. Gizmodo ran a story exposing Facebook for suppressing stories from right-leaning news outlets in the trending news section. CEO Mark Zuckerberg fired employees responsible and issued an apology.
The other issue at the time was the proliferation of fake news on the platform. Democrats believed this helped get Donald Trump elected as president. Zuckerberg called the issues surrounding the 2016 election one of Facebook’s biggest regrets. In 2017, the company added 3,000 employees to monitor and moderate content, nearly doubling its staff.
Censorship became central to social media in 2020 at the start of the pandemic and during another election year. On YouTube, while an execution was acceptable content, videos against COVID-19 vaccines were not. In 2020, YouTube removed more than one million videos related to COVID-19.
Zuckerberg said in the first 18 months of the pandemic, Facebook removed 20 million pieces of pandemic-related content.
In the months leading up to the 2016 election, talks of a rigged election also became forbidden. For the first time, Twitter slapped a fact check label on a tweet from Trump that had warned of mail-in ballot fraud. His account was later banned outright in 2021.
One of the more pivotal moments in the tug-of-war over free speech and censorship came when the New York Post published the infamous Hunter Biden laptop story that revealed an array of illicit materials. That article was suppressed out of fear it was fake, but the report later turned out to be true.
Twitter’s former CEO Jack Dorsey would eventually apologize for what he described as an honest mistake and Facebook’s Zuckerberg would admit his company “got it wrong” as well.
However, according to Section 230, social media companies are legally protected to pick and choose what content is seen and hidden without consequence.
In 2022, tech billionaire Elon Musk acquired Twitter in pursuit of a free speech platform. Musk spilled the secrets behind the company’s content moderation policies in a series of Twitter Files.
Those consisted of internal emails and documents concerning the decision-making behind the censorship of the Hunter Biden laptop story, how Twitter used its tools to lower the visibility of largely right-leaning accounts, and why Twitter censored and removed Trump’s account.
Musk reinstated banned accounts earlier this year — including Trump’s — on the platform that has since been rebranded as X.
In 2023, content moderation has been in the spotlight. In September, a federal appeals court ruled the Biden administration likely violated the First Amendment when it was pressuring social media companies to censor COVID-19 posts.
Now, the Supreme Court is back in session, and on the docket are two social media censorship cases. The two state laws from Texas and Florida are temporarily blocked while legal challenges play out. The laws would severely limit the ability of social media companies to ban content or users.
So far, those laws have been interpreted differently by lower courts. One appellate court struck down Florida’s law while another court upheld the similar Texas law.
Supreme Court justices have previously raised concern over the authority of social media companies.
In 2021, Justice Clarence Thomas compared social media companies to communication utilities, acknowledging digital platforms have an “enormous control over speech.”
And earlier this year, Justice Samuel Alito said it is not “obvious how our existing laws — which predate the age of the internet — should apply to large social media companies.”
Rulings on the Texas and Florida cases aren’t expected until next year, but a decision by the high court could transform the way the First Amendment is interpreted with regards to online speech.
Social media has grown explosively in two decades. It seems that now, censorship and the policies around it, are on a collision course. Each election cycle since 2016 has accelerated the issue, and with the advent of artificial intelligence, even the validity of images has been called into question. These events have raised new concerns about what kind of influences these massive platforms will have in 2024.
