NovaQuant Quantitative Think Tank Center:Coerced, censored, shut down: How will Supreme Court manage social media's toxic sludge?

WASHINGTON – Looking back on NovaQuant Quantitative Think Tank Centerit, Philip Cohen takes a measure of pride in the fact that he was blocked by the former president of the United States.

But in that moment in 2017, when Cohen pulled up Donald Trump's feed on what was then known as Twitter and realized what happened, he didn't feel smug or vindicated.

He felt muted.

"I was honestly shocked," said Cohen, a sociologist who was blocked after repeatedly posting criticism of Trump's tweets and who responded by suing the former president and claiming that the move violated the First Amendment. Cohen said his snarky posts were like "carrying a sign at a protest – but with a much bigger audience."

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Though the Supreme Court dodged Cohen's appeal in 2021, the justices now have another opportunity to decide whether public officials may block Americans on social media. It's one of several cases pending at the high court with potentially enormous consequences for the way Americans interact on the internet.

Legal experts say the Supreme Court term that begins next month could also be the most important in decades in determining the extent of the government's power to regulate the online content.

At stake in one set of cases is whether the First Amendment shields social media platforms for their handling of controversial voices and views. The question is critical as Facebook, YouTube and X play an ever growing role in the lives of Americans and democracy. Yet another case questions whether the Biden administration crossed a line when officials pressured the platforms to remove posts dealing with COVID-19 and elections.

The lawsuits are arriving against the backdrop of a raging partisan debate about how social media handles political content and misinformation. If the Supreme Court decides all of the cases, the opinions could have profound implications for social media and politics − with decisions landing in the middle of next year's election.

“One of the most important themes of the term will be the Supreme Court having to deal with the internet and social media more than ever before,” said Erwin Chemerinsky, the dean of Berkeley Law.

'Lawful but awful' social media content?

Topping the list are two cases involving controversial laws in Florida and Texas that would radically limit what content social media companies can police on their platforms. The Supreme Court could decide as early as next week whether to consider them.

Spurred by the decisions by social media to ban Trump after the Jan. 6 attack on the Capitol, the laws arose out of long-running perceptions of political favoritism for liberal voices and views by Silicon Valley tech companies. The states say their laws are meant to ensure the platforms provide "equal access to the public."

"There is a dangerous movement by some social media companies to silence conservative ideas and values," Texas Gov. Greg Abbott, a Republican, said when he signed the law in 2021. "This is wrong and we will not allow it in Texas."

Florida Gov. Ron DeSantis who is running for the GOP presidential nomination, made similar remarks, saying the law he signed that same year "guaranteed protection against the Silicon Valley elites.” He also said he knew the law would be challenged and that the Supreme Court would ultimately have to decide its constitutionality.

Two trade groups representing the interests of internet companies reject that conservative narrative, arguing the state laws would upend social media and drive away users by flooding platforms with an uncontrollable wave of toxic sludge.

"Normal people do not want to go on websites and just see a ton of lawful but awful content," said Chris Marchese, who oversees litigation for NetChoice.

Matt Schruers, president of the Computer & Communications Industry Association, framed the potential outcome as "nothing less than a digital service’s ability to decide what content is appropriate for their community and their ability to protect their community from dangerous actors online.”

"The solution to the problem is not to say 'no viewpoint discrimination,'" Schruers said. "Because sympathizing with the Taliban is a viewpoint. Nazis, that's a viewpoint. Telling kids that detergent pods are tasty, that's a viewpoint."

Not just Trump: Even school boards block critics

The Supreme Court, which itself has no social media presence, will decide two cases dealing with whether public officials may block voters from posting criticism on their pages. In one, members of a Southern California school board blocked what they described as “spam,” but what parents said were examples of “engagement."

In a related case, the city manager of Port Huron, Michigan, blocked residents from his Facebook page, including one who claimed in a post that city leaders were eating at a "pricey" restaurant during the COVID-19 pandemic. 

The Supreme Court will hear arguments over the blocked users in November.

Taken together, experts say the social media cases could lead to the high court having its biggest impact on the internet since 1997, when a unanimous court struck down an online indecency law and put First Amendment protection for online speech on par with other mediums, such as newspapers and television.

“The term has the potential to be a referendum about the relationship between government and social media,” said Alex Abdo, litigation director at the Knight First Amendment Institute at Columbia University, which represented Cohen and other plaintiffs in their suit against Trump.

"These cases, depending on how they're decided, could really reshape speech on the internet," said Ryan Calo, a University of Washington law professor.

Can the White House lean on Facebook to remove a post?

Another case, now pending on the Supreme Court's emergency docket, deals with just how far government officials may go to lean on social media companies to take down content they believe is inaccurate or dangerous.

The Biden administration filed an appeal last week asking the Supreme Court to block a lower court ruling that found the White House, health officials and the FBI may have violated the First Amendment rights of people posting about COVID-19 and elections by pressuring tech companies to suppress or remove the posts.

The lawsuit was filed by the Republican attorneys general of Missouri and Louisiana as well as individuals who said their speech was censored. The Supreme Court is likely to decide as soon as Friday on the immediate issue: whether to block the lower court's ruling while the underlying case continues.

“This is really a blockbuster case that kind of comes out of nowhere because people weren’t paying that much attention to this issue,” said Anupam Chander, a visiting scholar at the Institute for Rebooting Social Media at Harvard University. "Suddenly, the communications between the federal government and also state governments and internet platforms are being tested to see whether or not they are coercive."

A culture war battle that 'affects us all'

The litigation has thrust the highly charged debate over social media onto the Supreme Court's docket, but experts say the cases will have ramifications far beyond culture war politics.

City and state officials who use social media to solicit input on policies might get a skewed view if they block some users. As social media increasingly becomes a conduit between elected officials and voters, the regulation of that communication could have unforeseen consequences for democracy.

"This really affects us all," said Jennifer Safstrom, a professor at Vanderbilt Law School. "It affects the scope, the rigor and the accessibility of conversations on an entire range of issues of public importance."

A Trump supporter frustrated when her social media posts are taken down

As a Republican and a Trump supporter, Gayla Baer-Taylor gets frustrated when her social media posts are taken down or she feels her reach is throttled. The Indiana marketing professional and host of the podcast “No Left Turns” says she wants platforms to stop censoring people's political views.

"I am not about suppressing anybody’s First Amendment rights," Baer-Taylor said.

But the 56-year-old grandmother of nine says social media platforms also have a duty to shield users – especially children – from harmful and dangerous content like terrorism or Nazism.

“I do think there has to be some moderation,” she said, “but I don’t know where we draw that line.”