Texas, Florida and other Republican-led states are passing laws that prohibit tech companies from “censoring” users — laws that Republican leaders say are meant to protect their constituents’ rights to free speech.
In the view of the tech companies, however, it’s those Republican lawmakers who are actually censoring. And the victims are not the everyday users of their social networks, but the companies themselves.
As tech-interest groups fight regulations in court battles across the country, they are advancing arguments that cast their content moderation decisions and even their ranking algorithms — the software that decides which posts each user sees when they open the app or website — as a form of expression in its own right. And they’re calling on the First Amendment, which protects American citizens and companies alike from government restraints on speech, to keep states’ hands off.
From Texas to Florida to Ohio to the U.S. Supreme Court, the nation’s judges and justices are wrestling with gnarly new questions about just what constitutes free speech, and whose rights are really at stake when lawmakers try to regulate social media feeds. Hanging in the balance are not only efforts by the right to impose political neutrality on Silicon Valley giants, but efforts by the left and center to require greater transparency and to hold them accountable for amplifying speech that may be harmful or illegal.
“The First Amendment is to some degree up for grabs,” says Genevieve Lakier, a University of Chicago law professor and senior visiting research scholar at the Knight First Amendment Institute. “These old principles are being pushed and pulled and reimagined in light of changing technological conditions and changing political alignments.”
The legal battles have their roots in controversies over social media’s ever-growing role in shaping political discourse. As platforms such as Facebook, Twitter, YouTube and even TikTok have become influential forums for politicians, activists and the media, they’ve been criticized — often, though not exclusively, by the left — for fanning misinformation, bigotry, and division.
In response, those platforms have developed increasingly sophisticated systems — combining automation with human oversight — to detect and remove posts that violate their rules. In some cases, they’ve also adjusted their feed-ranking and recommendation algorithms to try to avoid highlighting content that could be problematic. But those moves have their own critics, especially on the right.
On May 11, a federal appeals court stunned the legal establishment by allowing Texas to move forward with a law that bans large Internet sites from “censoring” — whether by removing or algorithmically demoting — users’ posts based on their viewpoint. While the 5th Circuit Court didn’t explain its decision, the ruling seemed to support Texas Republicans’ argument that individual users’ right to be heard on social media platforms could trump tech companies’ right to decide which posts to display.
Tech companies quickly appealed to the Supreme Court, asking it to put the law back on hold while the lawsuit unfolds in a lower court. Justice Samuel Alito is expected to issue a ruling on that request in the coming days. While that ruling won’t resolve the case, it will be closely watched as a signal of how the broader debate is likely to play out in cases across the country.
Meanwhile, on May 23, another federal appeals court took a very different stand on Florida’s social media law, which is similar in spirit to Texas’s but differs in the details. In that case, the 11th Circuit upheld a lower court’s decision to suspend large swaths of the Florida law, on the grounds that tech companies’ algorithms and content moderation decisions amount to “constitutionally protected expressive activity.”
That ruling was broadly in keeping with decades of legal precedent holding that the best way to protect free speech is for governments to stay out of it. But it was noteworthy in affirming that social media sites’ “curation” of content is itself a form of protected speech.
It was also nuanced. While the appeals court judges found that many of the Florida law’s provisions were likely to be unconstitutional, they reinstated portions of the law that require tech companies to disclose certain types of information relevant to their content moderation processes.
For instance, they found that Florida requiring social media platforms to spell out their content moderation standards, show users the view counts on their posts, and give suspended users access to their data might be permissible. Those provisions will now take effect while a lower court continues to hear the case. But the court rejected a provision that would have required platforms to articulate to users their reasoning for suppressing any given post, ruling that it would be too burdensome.
Importantly, it also swatted away a provision requiring platforms to offer their users the ability to opt out of algorithmic ranking and see every post in their feed in chronological order. That decision, again, was on First Amendment grounds, suggesting platforms have a constitutional right to algorithms and even “shadow banning” — a colloquial term for hiding posts from certain users or making them harder to find, often without the user knowing about it.
Mary Anne Franks, a University of Miami law professor and author of the book “The Cult of the Constitution,” is a critic of what’s sometimes called “First Amendment absolutism” — the idea that the government can almost never interfere with even the most abhorrent speech. She argues there should be room for reforms that allow tech companies to be held responsible when they host or promote certain types of harmful content.
Yet Franks believes the 11th Circuit was correct to find much of the Florida law unconstitutional. Requiring social media platforms to offer a chronological feed, she said, would be analogous to requiring bookstores to arrange every book in chronological order in their storefront window — a violation of their right to decide which works to highlight.
That opinion could have implications not only for attempts by the right to restrict content moderation, but also for bipartisan and progressive proposals to promote more and better content moderation. Those include a bevy of bills that surfaced or gained momentum after the Facebook whistleblower Frances Haugen called attention to how that company’s algorithms prioritized engagement and profits over social responsibility.
Some of those bills would remove the liability shield that Internet platforms enjoy under Section 230 of the Communications Decency act if their algorithms play a role in amplifying certain categories of speech. Others would require social media sites to offer “transparent” alternatives to their default recommendation algorithms. Still others would require them to submit their ranking algorithms to researchers or even the Federal Trade Commission.
Based on the recent federal court opinions, most, if not all, would likely prompt lawsuits from tech groups alleging that they violate the First Amendment. Exactly where courts will draw the line remains to be seen.
“What the 11th Circuit opinion does is start from the presumption that algorithmic ranking and recommendation and amplification is part of the First Amendment-protected conduct or speech that a platform engages in,” said Emma Llanso, director of the Free Expression Project at the nonprofit Center for Democracy and Technology, which receives funding from tech companies as well as some tech critics. “And so any regulation of that aspect of what platforms do will potentially face the same First Amendment scrutiny.”
That doesn’t mean regulating social media algorithms is impossible, Llanso said. But it sets a “very high bar” for the government to show a compelling interest in doing so, and to avoid making any such regulations overly burdensome.
In the wake of the recent court opinions, the kinds of regulations that would seem to have the best chance of surviving judicial scrutiny are those that focus on transparency, Llanso and other experts agreed. For instance, a bipartisan bill in Congress that would require large platforms to share data with approved researchers might stand a solid chance of surviving the level of scrutiny that the 11th Circuit applied.
But they cautioned that the big, underlying legal questions remain open for now, especially after the 5th and 11th circuits took such different stands on the Texas and Florida laws.
At the core of the debate is whether it’s only the tech companies’ speech rights that are at issue when the government attempts to regulate them, or whether some of those tech companies now have such power over individuals’ speech that the speech rights of users should come into play.
Historically, conservative thinkers held that “the best way to protect users’ speech rights is to give a lot of speech rights to platforms,” Lakier said, while some on the left worried that individuals’ speech rights were being given short shift. Now, a new breed of Trump-aligned Republicans has taken up the view that individuals may need speech protections from corporations, not just the government. Those include Texas Gov. Greg Abbott, Florida Gov. Ron DeSantis, and Supreme Court Justice Clarence Thomas.
“It’s a live question,” Lakier said. While she believes the Texas and Florida laws go too far in restricting platforms, she added, “I will say as a progressive, I’m quite sympathetic to this turn to users’ speech rights. I think we should be thinking about that a lot more than we have in the past.”
Cat Zakrzewski and Cristiano Lima contributed to this report.
AJ Contrast wins One World Media Award – Al Jazeera English
Al Jazeera Digital’s innovation studio site highlights challenges women with disabilities face in navigating megacities.
Al Jazeera’s immersive storytelling and media innovation studio, AJ Contrast, has won a top prize at the One World Media Awards in London.
One World jurors conferred the win in the Digital Media category for AJ Contrast’s interactive site, Inaccessible Cities.
The project brings audiences into the experiences of three women with disabilities as they struggle to navigate their cities – Mumbai, Lagos and New York.
Winners were announced across 15 categories during a ceremony in London on June 16.
The One World Media Awards recognise excellence in unreported stories from the Global South that “break stereotypes, change the narrative and connect people across cultures”.
Inaccessible Cities added the award to numerous other wins so far this year in the Drum Online, Gracie, New York Festivals and Telly Awards.
More than one billion people – 15 percent of the global population – experience some form of disability. Many live in urban areas.
The Inaccessible Cities site begins with a simple question: “How would you get around a megacity if you couldn’t walk, see signs or hear cars passing by?”
“It’s a great honour to be recognised by the One World Media Awards,” said Zahra Rasool, head of AJ Contrast.
“Our aim has always been to highlight unreported stories about the people most impacted by inequality, often in the Global South.
“With Inaccessible Cities, we wanted to show how a lack of accessible public transport and infrastructure impacts people with disabilities – especially women – from fully and independently participating in society.
“Our aim is to continue inspiring a new standard for digital news content that’s fully inclusive of people with disabilities and to bring awareness to their challenges.”
In keeping with AJ Contrast’s emphasis on collaboration, the team worked closely with journalists with disabilities, local talent and the women who are the subject of the interactive experience.
“We are very proud of our AJ Contrast team,” said Carlos van Meek, Al Jazeera’s director of Digital Innovation and Programming. “Despite the production challenges brought on by COVID-19, this driven, talented team has continued to innovate and set the benchmark for immersive storytelling.”
Other Al Jazeera Digital teams made the One World long list, including the AJLabs series Visualising the Afghan War and two films by short documentary unit AJ Close Up – Russia’s Banned Youth and Norway’s Afghan Sons.
The Al Jazeera English broadcast channel also was long listed in the News category for the 101 East documentary India’s COVID Warriors. Jurors evaluated a record number of entries from 96 countries.
The complete list of One World winners can be found in the One World Media winners’ gallery.
Toronto politician accused of homophobic social media posts resigns from city council – blogTO
Rosemarie Bryan, a newly appointed city councillor for Toronto’s Etobicoke North district, resigned from her position just hours after several homophobic tweets were surfaced from her social media account.
Tonight, Rosemarie Bryan has resigned the City Council seat she was appointed to today.
— John Tory (@TorontosMayor) June 25, 2022
Rather than have an election to fill the open seat, the convention is for the departing city councillor to recommend his or her replacement and as we learned this week, the current city councillors basically agree to the recommendation without any proper vetting or due diligence.
All was fine and well until a number of anti-2SLGBTQ+, Islamophobic and anti-Asian social media posts were surfaced by local journalist Jonathan Goldsbie.
— Jonathan Goldsbie (@goldsbie) June 24, 2022
Councillors quickly realized they might have been a tad too hasty to back the appointment which was done through a simple vote. Only two councillors voted against confirming Bryan.
“I want to state unequivocally that had I seen these posts before the vote, I would have never supported Rosemary,” wrote councillor Buxton Potts in a tweet.
Many of the councillors who voted for Bryan now admit the process needs to change and that the confirmation of replacement councillors has relied too heavily on the recommendation of the departing one.
It’s customary for council to support the choice of the councillor who resigned their seat since they won the election. This dates back a long way and certainly needs to be re-examined.
— Mike Layton (@m_layton) June 24, 2022
In this case, no councillors appeared to do any due diligence that could have possibly surfaced the social media posts before Bryan’s appointment was confirmed.
This process certainly demands a rethink of the way the appointment process works.
— Mike Layton (@m_layton) June 25, 2022
Some of Bryan’s old posts include shared content from Tucker Carlson and statements from preachers that claim “homosexuality is wrong” and that “divine order is needed in  churches,” along with comments of approval from Bryan that had, at one point, clearly supported these messages.
These posts are not acceptable for a Toronto City Councillor.
I totally disagree with any homophobic or transphobic views. I absolutely support our 2SLGBTQ+ residents. City Councillors are expected to set an example when it comes to consistency with our shared values.
— John Tory (@TorontosMayor) June 25, 2022
Bryan’s social media posts were first uncovered by Goldsbie on Friday night when he tweeted that City Council’s newest member is a person who has “repeatedly shared anti-LGBTQ content on Facebook” which, the discovery shocking enough on its own, was found at the start of Pride weekend.
Councillors began to weigh-in just moments after Goldsbie’s revelation, regretting not digging enough earlier to uncover what would later make a huge difference.
I want to state unequivocally if I had I seen these social media posts prior to City Council I would never have voted for Rosemarie Bryan. I am glad she resigned. The system for Cllr vacancies needs to be changed. #Ward24 #TOPoli https://t.co/b28hbZ1YjK
— Paul Ainslie (@cllrainslie) June 25, 2022
Bryan issued a statement late Friday stating she was “so devastated” that past social media posts she made “are now being thrown against” her decades of commitment to the community.
Breaking – The interim Ward 1 city councillor appointed by Toronto city council this afternoon has resigned after @goldsbie flagged Facebook posts that appear to be homophobic pic.twitter.com/LZtYsq12zR
— David Rider (@dmrider) June 25, 2022
Bryan claims she will “remain committed to helping [her] community in every way that [she] can.”
Many people are still upset at the fact that Bryan was ever appointed in the first place.
People are also critiquing her “apology” or lack thereof, saying that the only apology issued was an apology about the fact that she was discovered.
Mayor John Tory tweeted that he has now “asked City officials to review the overall appointment process ahead of future Council appointments.”
Newest council appointment resigns after controversial social media posts surface – CityNews Toronto
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- Newest council appointment resigns after controversial social media posts surface CityNews Toronto
- Newly appointed Toronto councillor resigns after controversial social media posts resurfaced CTV News Toronto
- Toronto politician accused of homophobic social media posts resigns from city council blogTO
- Toronto’s newest councillor resigns hours after she was appointed Global News
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