There’s a reason the First Amendment was first on the list of unalienable rights America’s founders endowed us with. The freedom to worship, speak, publish, gather, and protest how we want is the foundation of our democracy. Social media platforms, which have been heralded by some as champions of the First Amendment, now face increased constitutional scrutiny with two conflicting circuit court decisions over social media companies’ right to moderate content.
In Texas, the Fifth Circuit Court of Appeals recently ruled that social media companies do not have the right under the First Amendment to exercise control over their users’ content. This decision contradicts that of Florida’s 11th Circuit Court and flies in the face of decades of court precedent, which states that corporations maintain the same rights as people and are obliged to censor speech, especially if it is hateful or incendiary. The Fifth Circuit’s ruling is unconstitutional and unduly influenced by ideologues who rail against social media companies’ content moderation duties. The Supreme Court, acting as a sort of constitutional referee between the Fifth and 11th Circuit, will likely rule on this issue soon as the 11th Circuit decision was appealed.
Social media companies are private entities, just like you and I are private citizens. In the same way that we are responsible for our words, social media companies are also accountable for the dialogue on their platforms. They must ensure that their content isn’t obscene or incitive, and they do so by requiring users to abide by terms of service, which users voluntarily agree to when they sign up. Content posted in violation of a platform’s terms of service or community guidelines is swiftly removed. These content moderation practices are among the most important functions of social media companies because they keep our online world safe, cordial, and welcoming.
Fortunately, the 11th Circuit in Florida recognized the significance of what is at stake and struck down a similar law to the one upheld in Texas by the Fifth Circuit. In that decision, Circuit Judge Newsom stated, “Whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.” If the Supreme Court overturns this decision, social media companies will be stripped of their constitutional right to moderate content, and their platforms will change dramatically, becoming a breeding ground for vile, violent, and vicious content.
This pending Supreme Court case obviously worries social media companies who are fighting to secure their First Amendment rights. But it should also scare all American citizens who could see their constitutional rights threatened by the very court sworn to protect them. Not to mention the kind of inappropriate and vulgar content that would be allowed on social media platforms that have an ever-increasing number of minor users.
Let this be a warning to the 11th Circuit in Florida and to all Americans – if the First Amendment goes, so does our democracy and, subsequently, our nation. We must utilize the freedoms we still have and make it known the 11th Circuit’s decision must be upheld, and the Fifth Circuit case should never have come before a judge. The implications of this case extend far beyond the digital confines of the internet and right to the core of the United States of America.
Julio Fuentes is the President and CEO of the Florida State Hispanic Chamber of Commerce, which represents more than 604,000 Hispanic-owned businesses in Florida that contribute more than $90 billion to our state economy annually.