The U.S. Supreme Court has taken an unusually active interest in internet free speech issues. EFF participated as amicus in a whopping nine cases before the court this year. The court decided four of those cases, and decisions in the remaining five cases will be published in 2024.
Of the four cases decided this year, the results are a mixed bag. The court showed restraint and respect for free speech rights when considering whether social media platforms should be liable for ISIS content, while also avoiding gutting one of the key laws supporting free speech online. The court also heightened protections for speech that may rise to the level of criminal “true threats.” But the court declined to overturn an overbroad law that relates to speech about immigration.
Next year, we’re hopeful that the court will uphold the right of individuals to comment on government officials’ social media pages, when those pages are largely used for governmental purposes and even when the officials don’t like what those comments say; and that the court will strike down government overreach in mandating what content must stay up or come down online, or otherwise distorting social media editorial decisions.
Platform Liability for Violent Extremist Content
The court, in two similar cases, declined to hold social media companies—YouTube and Twitter—responsible for aiding and abetting terrorist violence allegedly caused by user-generated content posted to the platforms. The case against YouTube (Google) was particularly concerning because the plaintiffs had asked the court to narrow the scope of Section 230 when internet intermediaries recommend third-party content. As we’ve said for decades, Section 230 is one of the most important laws for protecting internet users’ speech. We argued in our brief that narrowing Section 230, the law that generally protects users and online services from lawsuits based on content created by others, in any way would lead to increased censorship and a degraded online experience for users; as would holding platforms responsible for aiding and abetting acts of terrorism. Thankfully, the court declined to address the scope of Section 230 and held that the online platforms may not generally be held liable under the Anti-Terrorism Act.
True Threats Online
Case: Counterman v. Colorado – DECIDED
The court considered what state of mind a speaker must have to lose First Amendment protection and be liable for uttering “true threats,” in a case involving Facebook messages that led to the defendant’s conviction. The issue before the court was whether any time the government seeks to prosecute someone for threatening violence against another person, it must prove that the speaker had some subjective intent to threaten the victim, or whether the government need only prove, objectively, that a reasonable person would have known that their speech would be perceived as a threat. We urged the court to require some level of subjective intent to threaten before an individual’s speech can be considered a “true threat” not protected by the First Amendment. In our highly digitized society, online speech like posts, messages, and emails, can be taken out of context, repackaged in ways that distort or completely lose their meaning, and spread far beyond the intended recipients. This higher standard is thus needed to protect speech such as humor, art, misunderstandings, satire, and misrepresentations. The court largely agreed and held that subjective understanding by the defendant is required: that, at minimum, the speaker was in fact subjectively aware of the serious risk that the recipient of the statements would regard their speech as a threat, but recklessly made them anyway.
Encouraging Illegal Immigration
Case: U.S. v. Hansen – DECIDED
The court upheld the Encouragement Provision that makes it a federal crime to “encourage or induce” an undocumented immigrant to “reside” in the United States, if one knows that such “coming to, entry, or residence” in the U.S. will be in violation of the law. We urged the court to uphold the Ninth Circuit’s ruling, which found that the language is unconstitutionally overbroad under the First Amendment because it threatens an enormous amount of protected online speech. This includes prohibiting, for example, encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services, or even providing noncitizens with Know Your Rights resources or certain other forms of legal advice. Although the court declined to hold the law unconstitutional, it sharply narrowed the law’s impact on free speech, ruling that the Encouragement Provision applies only to the intentional solicitation or facilitation of immigration law violations.
Public Officials Censoring Social Media Comments
The court is considering a pair of cases related to whether government officials who use social media may block individuals or delete their comments because the government disagrees with their views. The First Amendment generally prohibits viewpoint-based discrimination in government forums open to speech by members of the public. The threshold question in these cases is what test must be used to determine whether a government official’s social media page is largely private and therefore not subject to First Amendment limitations, or is largely used for governmental purposes and thus subject to the prohibition on viewpoint discrimination and potentially other speech restrictions. We argued that the court should establish a functional test that looks at how an account is actually used. It is important that the court make clear once and for all that public officials using social media in furtherance of their official duties can’t sidestep their First Amendment obligations because they’re using nominally “personal” or preexisting campaign accounts.
Government Mandates for Platforms to Carry Certain Online Speech
The court will hear arguments this spring about whether laws in Florida and Texas violate the First Amendment because they allow those states to dictate when social media sites may not apply standard editorial practices to user posts. Although the state laws differ in how they operate and the type of mandates they impose, each law represents a profound intrusion into social media sites’ ability to decide for themselves what speech they will publish and how they will present it to users. As we argued in urging the court to strike down both laws, allowing social media sites to be free from government interference in their content moderation ultimately benefits internet users. When platforms have First Amendment rights to curate the user-generated content they publish, they can create distinct forums that accommodate diverse viewpoints, interests, and beliefs. To be sure, internet users are rightly frustrated with social media services’ content moderation practices, which are often perplexing and mistaken. But permitting Florida and Texas to deploy the state’s coercive power in retaliation for those concerns raises significant First Amendment and human rights concerns.
Government Coercion in Content Moderation
Case: Murthy v. Missouri – PENDING
Last, but certainly not least, the court is considering the limits on government involvement in social media platforms’ enforcement of their policies. The First Amendment prohibits the government from directly or indirectly forcing a publisher to censor another’s speech. But the court has not previously applied this principle to government communications with social media sites about user posts. We urged the court to recognize that there are both circumstances where government involvement in platforms’ policy enforcement decisions is permissible and those where it is impermissible. We also urged the court to make clear that courts reviewing claims of impermissible government involvement in content moderation are obligated to conduct fact and context-specific inquires. And we argued that close cases should go against the government, as it is the best positioned to ensure that its involvement in platforms’ policy enforcement decisions remains permissible.
This blog is part of our Year in Review series. Read other articles about the fight for digital rights in 2023.