The Supreme Court of the United States (“Court”) recently pronounced its judgement in cases of pivotal implication for online free speech. The cases, titled NetChoice vs. Paxton, Moody vs. NetChoice (“NetChoice”), and Murthy vs. Missouri (“Murthy”), broadly, concerned the issue of government influence over free speech. This blog analyses the concerns around free speech that arose from these cases and explains why these cases are of relevance for the Indian context. At the time of writing this blog, the cases were pending final judgement from the Court. The blog was slightly amended to accommodate the resulting ruling.
The Court remanded the NetChoice cases to the lower courts for proper analysis of the First Amendment challenges against the impugned laws. In Murthy, the Court, by a majority of 6-3, reversed the decision of the lower court and held that the plaintiffs in the case lacked standing to seek injunctive relief.
Background
Murthy’s case pertains to the question of jawboning, a term used to describe governmental pressure on platforms to influence their content moderation decisions. It arose in the context of government communications to platforms for removal of certain types of content during the pandemic. The NetChoice cases, on the other hand, challenge laws passed by the states of Florida and Texas, containing different provisions but having a similar effect through provisions that “prohibit social media platforms from removing or limiting the visibility of user content in certain circumstances”.
The underlying issue in these cases is whether government regulation or governmental influence on content moderation decisions of platforms offend their First Amendment right. Unlike India, platforms in the United States possess the First Amendment right that protects free speech. This protects platforms’ ‘editorial discretion’ in the kind of content they want to keep on or off their platforms.
In NetChoice, it was contended that Texas and Florida laws have the effect of usurping platforms’ editorial discretion by restricting their right to remove harmful content. The Murthy case represents the flipside to this, with the contention that the platforms are exercising censorship on certain kinds of content through content moderation, targeting conservative voices. The cases demonstrate the conflicting claims regarding platforms’ threatening the user’s freedom of speech and the government threatening the platforms’ freedom of speech by regulating its discretion in content moderation.
Notably, these cases arise in the context of rising dissatisfaction amongst many conservatives in the US who complain that platforms are targeting conservative viewpoints. The Texas and Florida laws, passed by Republican-held legislatures, serve to remedy this perceived targeting of conservative viewpoints, a grievance also raised in the Murthy case.
Content Moderation vs. Freedom of Speech
The NetChoice hearing suggested that the Court seemed sceptical of government regulation forcing “social media companies to carry certain content.” In Murthy, on the other hand, the Court may be favourable to ordinary pressure by the government influencing content moderation, so long as it is not governmental compulsion. This is a precarious line to tow for platforms and governments, especially as it entails both the users’ as well as the platforms’ rights to free speech.
Interestingly, all parties in these matters claim violation of First Amendment rights in some form. In Murthy, the respondent argued that the government’s encouragement of the platforms to take down certain content violated the user’s freedom of speech. Similarly, while NetChoice claims infringement of platforms’ First Amendment right, Texas argued that the ‘viewpoint non-discriminating’ or ‘content neutral’ provisions of its regulation are meant to protect users’ rights. These rules divided people across the political spectrum. For instance, a group of liberal academics filed a brief in favour of these laws, which were passed by Conservative legislatures, demonstrating that the implications of these issues concern people in ways that cut across the usual partisan differences.
However, as pointed out by others, the rules in fact serve to favour or disfavour otherwise lawful speech and if in force, will manifest as content-based in their regulation while imposing “state’s preferred speech rules”. Such laws could lead to proliferation of disinformation on these platforms, for instance, of the kind that prevailed during the pandemic. And it was precisely the content moderation attempts against such disinformation that face challenge in Murthy.
Moreover, there are other factors that go on to influence content moderation by platforms run by businesses with vested interests, such as ad revenue. Platforms cannot host content that is otherwise legal, but hostile or inappropriate – such as that related to anti-vaxxing, transphobia, racism or sexism, and would threaten the “brand safety” that advertisers demand for on these platforms.
A proposed solution to the dilemma of content moderation is the idea of middleware conceptualised by Fukuyama et al. Middleware provides more user control over online content, avoids “universal restrictions at source” and reduce the need for top-down regulation, while promoting the ideals of anti-censorship. Middleware is not without its downsides. It can lead to creation of echo chambers and raises questions about user privacy and regulatory oversight.
It is notable that the final judgement in Murthy did not make a substantive determination on the basis of the First Amendment. Similarly, in NetChoice, while holding that platforms have the First Amendment right, the Court has left it upon the lower courts to determine if those rights are violated by the Texas and Florida laws. The many facets of the First Amendment questions that arise in these cases therefore continue to remain unresolved.
Like Newspapers, Like Telephones
A recurring issue in the NetChoice cases is the treatment of platforms under the law. NetChoice argued that platforms are like newspapers, while the States argued that platforms are conduits, like telephone companies. But platforms don’t fit into either. Because of the ambiguous status of platforms in communication technologies, Section 230 of the Communication Decency Act, 1996 provides immunity to the platforms from civil liability for the content posted on them by their users and for removal of content in certain circumstances.
The section creates an apparent inconsistency with the First Amendment right of the platforms, a confusion that also reflected in the hearing of the NetChoice case. The confusion arises from the fact that platforms are immune from liability for user’s speech, but are also able to claim First Amendment right for themselves. However, the confusion arises due to a misunderstanding of Section 230, which aimed to further the First Amendment right of platforms by providing them immunity and enabling editorial discretion.
Section 230 operates to ensure that the user’s speech expressed on a platform is the user’s alone and the platform is not made responsible for it. However, the issue that concerns these cases is “separate message that platforms convey” in facilitating user expression, or in denying certain speakers or speech, which amounts to platforms saying a separate message of their own.
Relevance for India
Platforms in India do not have a right such as the First Amendment in the US. However, First Amendment serves to be an integral protection for platforms for their exercise of discretion in keeping certain content off the platform, especially when seen in terms of governmental attempts to influence content moderation decisions. In India, for instance, X Corp. proceeded to the Karnataka High Court (case is now pending on appeal before a Division Bench of the High Court) against the government’s blocking orders. While X cannot claim a freedom of speech protection for itself, it relied heavily on the user’s right of freedom of speech instead.
This is more crucial in the Indian context where there is lack of transparency and mandated confidentiality around government takedown and blocking orders. Refusal to adhere to the government’s orders puts platforms at the risk of losing their safe harbour protection. Further, as per reports, India’s upcoming Digital India Bill, currently in draft stage, considers removing safe harbour for platforms altogether. Such a move will have significant implications for free speech in India and harmful content online.
The decision of the US Supreme Court could serve to redefine our outlook towards content moderation and regulation of online speech. It could serve to shape the conversation outside of India and the claims platforms, users and governments alike make before courts in their defence in matters of content moderation.
Sukriti
Sukriti works as an Analyst at the Centre for Communication Governance at National Law University Delhi (CCG). She is interested in data protection and privacy, platform governance, and issues of digital rights and free speech.
