The NPR Politics Podcast - States Tell SCOTUS That Social Media Censors Conservatives

Episode Date: February 27, 2024

The United States Supreme Court is weighing in on a case legal experts say is the biggest test of free speech this country has seen in decades. The question is whether states can force social media platforms to share content that's deemed hateful and objectional. This episode: White House correspondent Asma Khalid, national justice correspondent Carrie Johnson, and tech correspondent Bobby Allen.Our producers are Jeongyoon Han, Casey Morell & Kelli Wessinger. Our editor is Erica Morrison. Our executive producer is Muthoni Muturi. Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Bonnie calling from Rochester, Michigan, and I'm headed to my local precinct to work as an election inspector for the Michigan primaries. This podcast was recorded at 1 10 p.m. Eastern time on Tuesday, February 27th of 2024. Things may have changed, but make sure your voice is heard in the voting booth this primary season. Here's the show. Certainly on trend. I like to see that democracy in action.

Well, hey there, it is the NPR Politics Podcast. I'm Asma Khalid. I cover the White House. I'm Carrie Johnson. I cover the Justice Department. And the United States Supreme Court heard arguments yesterday from two states that argue social media companies are censoring conservative viewpoints. Today on the show, we'll dive into the biggest test of free speech this country has seen in decades. And to help us do that, we are joined by NPR's tech correspondent, Bobby Allen. Hey there, Bobby. It is great to have you with us. Hey, everyone. Thanks for having me. So, Kerry, I want to begin the conversation with you.

Can you lay out the case for us? What are these two states, Texas and Florida, arguing? Sure. So in 2021, Texas and Florida each passed laws that relate to some of the biggest social media platforms out there. We're talking about places like Facebook, Twitter, now known as X, and YouTube. There are differences among these laws, but basically they seek to prevent the big social media platforms from banning people based on their viewpoint that they express in posts or videos. And they also demand that these companies give users an individual explanation when they remove posts or try to boot somebody off of these sites. And they're defending these laws at the Supreme Court by saying these social media platforms are the modern public square. They have enormous public influence and they shouldn't be basically censoring conservative views. And this whole thing started with debates about misinformation, about the

COVID vaccines and rhetoric around January 6, 2021, when the Capitol was violently stormed, and whether those voices were being heard equally on these sites. I mean, to that point, Bobby, is there evidence that some voices are being censored on these social media platforms, whether these are conservative voices? Or, you know, in recent months, we've heard criticism from pro-Palestinian voices on certain platforms feeling like their voices are not being given equal weight. Yeah. So I think there are groups and individuals on both the left and the right who say that they have been shadow banned, which is this idea that tech companies in this sort of clandestine way are throttling back the reach of their posts that, you know, instead of saying it

publicly like, hey, Asma Khalid, we're going to not give as much reach to your next post that they just like turn the dial down. And the next time you post, it doesn't reach as many people. Now, there's no real evidence that that's happening in a systemic way. But it certainly is something that becomes a rallying cry and really animates a lot of these conversations about whether the platforms are censoring speech or not. So, Kerry, let's talk about the specific arguments in front of the court yesterday. The arguments went on for what, about four hours. What were some of the questions that the justices had? Sure. So, you know, among the more vocal justices was Brett Kavanaugh, and he is a conservative, but he came down very, very strongly on the free speech side and very, very strongly on

behalf of these big social media platforms. He was giving a hard time to the lawyer for Florida who was defending the state law by pointing out that when the lawyer for Florida was reading from part of the First Amendment, the lawyer neglected to read words that the First Amendment actually concerned the government and prescriptions by the government and not by private companies. In your opening remarks, you said the design of the First Amendment is to prevent suppression of speech, end quote. And you left out what I understand to be three key words in the First Amendment or to describe the First Amendment, by the government. Do you agree by the government is what the First Amendment is targeting. And the key here is that these laws are basically, according to the social media companies,

forcing them to keep speech up that they want to restrict for whatever reason, that it bans their terms of service, that it's violent, that it's hate speech, that it's offensive to people, users and advertisers. And the First Amendment deals with conduct by the government, not by private businesses, which these are. And that was a tension that the justices kept coming back to over the course of almost four hours of arguments yesterday. Now, I know it's hard to hypothesize about what the court might do, but did you get a sense of which side's arguments the justices appeared to be believing more.

You know, four of the justices across ideological lines seem to be very concerned with these states trying to pass sweeping laws that would ban places like Facebook and YouTube from imposing some control over their platform. And the argument is, you know, when we talk about the First Amendment, there's a long history of the First Amendment when it comes to newspapers or bookstores or even parade routes. And so the question is whether the social media companies in arranging content and sometimes removing content, whether those are editorial decisions or whether those are just algorithmic decisions done by machines. And that was at the heart of this dispute. You know, Justice Samuel Alito, a very conservative justice, did not seem to be buying

what these social media companies were selling yesterday at the court. And he really took issue with the idea that these platforms are like newspapers. Here's what he said. If, let's say, YouTube were a newspaper, how much would it weigh? You know, a law professor at St. John's University, Kate Klonick, actually put into ChatGPT the question of how much YouTube would weigh. And she got an answer. And the answer was, if you took a day's worth of videos from YouTube, it would weigh over 400,000 pounds. Oh, my gosh. So, you know, are these platforms like newspapers or not? All these

things are kind of uncomfortable analogies. I mean, it strikes me, Bobby, that lawmakers, that politicians, lawyers, I mean, frankly, all of us seem to be struggling with how exactly social media fits into the modern construct of communication, right? To Carrie's point, are they newspapers? Are they like the public airwaves that, you know, the government does have some regulation over? And I don't know that we have a clear answer of where social media companies fit in. Yeah, no, it's definitely up for debate. But I mean, for the past 25 years, this idea of the open internet has been the reigning idea, which is keep the government out of it. The more speech, the better. Let these internet companies be the gatekeepers of speech. And of

course, that concerns a lot of people because these companies have amassed an incredible amount of power. They're dealing with accusations that they abuse their power and they basically operate as monopolies. You know, when they make decisions about content, it always angers at least one group and should they really have this power? But then the other side says, well, do you really want the government to have this power? Because then governments can sort of entrench that power by making ideological choices about what's allowed and what's not. And that implicates all sorts of First Amendment concerns. And it's really, really a mess. But I think what the arguments in front of the Supreme Court really speak to is that there's really kind of a battle happening now over the future of the internet. It's a battle over the soul of the internet and what the guard

rails ought to look like and how those guard rails are changing. And it's all sort of evolving in real time in courtrooms. All right. I've got a lot more questions, rails ought to look like and how those guardrails are changing. And it's all sort of evolving in real time in courtrooms. All right. I've got a lot more questions, but let us pause the conversation here for a moment and we'll be back after a quick break. And we're back. And Bobby, let's run through the possibilities of what could happen depending on how the Supreme Court rules here. If the tech companies win, what could happen to the social media companies as we know it? Well, if the tech companies win, then it's basically going to be a status quo. They'll

keep their gatekeeper status. They're going to be the ones who call the shots about what's allowed and what's not. And I don't, I mean, if they totally win, I don't think, I think the status quo will basically be affirmed. Now, if the states win, there's a lot of potential outcomes. And of course, as we often see with Supreme Court cases, it's not going to be all win or all lose, right? There's probably going to be a fair amount of caveat and a fair amount of nuance that's going to make a complicated ruling potentially, right? And so if there are aspects of these laws that are upheld, I mean, some of the tech companies are saying it could unleash a tide of internet garbage in Texas and Florida, that these companies can take a laissez-faire approach, take their hands

off and say, you know what, here's all the hate speech, here's a glut of spam, here's all this terrible stuff that you weren't seeing before, we're not going to regulate any of it. And that would make these platforms almost unusable. That's option one. Option two, potentially, is you could see these platforms withdraw service from Texas and Florida. There's ways using technology to basically put a circle around Florida, put a circle around Texas, and they have sort of this geo-blocking technology. And if you're a resident in one of those states, you won't be able to use X. You won't be able to see TikTok. Social media

might not function at all in these states. Is that really realistic, Bobby? I mean, it's an extreme hypothetical, and there's all sorts of complications that we could get into, but it's one thing that has been threatened. I don't think it's actually going to happen, but it's within the realm of some kind of possibility since tech companies are sort of bringing it up. And then there's a third option, which is, you know, trying to comply with these laws. And since they're, as one person put it to me recently, you know, fairly baroque, they're just so murky and so ambiguous that the lawyers who are tasked with complying with these laws are confused about what some of the language in these Texas and Florida laws mean. I gave three scenarios. One final one that I just heard recently is

it might be the end or at least a change of what we call the user-generated internet, right? You and I post, your uncle posts, your colleagues posts. Maybe there's going to be a move towards professionally produced content, which is done by content creators, and it's not done by everyday people, and it's just less risky. Who knows? But there's a lot of different scenarios here, and the tech companies are definitely bracing to see what the final ruling is going to be here, because it could change the internet as we know it. You know, Bobby, that's really interesting, because one of the things I heard these justices struggling with yesterday was what to do here, in part because these laws are so sweeping. And at one point, for many minutes, they engaged in all kinds of like side discussions about how many social media platforms the Florida law actually applied to.

And they got off on these tangents about whether the Florida law is so sweeping it might apply to Uber or Venmo. And what do you do then? And can we get rid of these laws if it might have valid applications in some of these, you know, money apps and the like? And so one of the things that the Biden administration really urged the court to do yesterday was to rule very narrowly in this case and not go into all those tangents and all those side issues, and basically to protect the ability of the biggest platforms to engage in content moderation as they do now and leave all those other questions for another day. And so we may get a case, we may get a case down the line sooner rather than later that raises a

lot more of these very thorny questions. Carrie, to be clear, isn't this all playing out still in the lower courts? So what happened is that these laws in Texas and Florida have been blocked for now. Depending on what the justices do, they could take effect. Parts of them could take effect. I mean, it's all potentially going back to lower courts to develop more of a record. What that means is more facts, more evidence, more exchanging of information with respect to the way these platforms and other platforms might actually behave in response to these laws.

You know, throughout this conversation, I think one of the things I keep coming back to is the fact that tech companies provide this content moderation, but there's not a lot of transparency around how they do that. And I do think, you know, users are confused and they don't have answers. And I know that there's been legislation on Capitol Hill to try to force some of these tech companies to provide answers and transparency, but those pieces of legislation haven't passed. are upheld and that the companies would then have to reveal why they take content down. They would have to get more open and transparent about their community standards and about their rules for content because you're right, Asma. I mean, these companies operate in this very sort of opaque way. You see people get suspended or banned or content removed and there's no way to

appeal. And you really feel like you have no window into how that process happened and what rules they're using to push speech or push people off these platforms. And that, understandably so, has been very frustrating to, you know, many, many users. All right. Well, that is a wrap for today's show. Thanks so much for joining us, Bobby. Thanks for having me. I'm Asma Khalid. I cover the White House. And I'm Carrie Johnson. I cover the Justice Department. And thank you all, as always, for listening to the NPR Politics Podcast.