The Supreme Court sidestepped important issues involving the Internet in its last term, while also weighing issues with the potential to have major consequences for online speech and social media rights.
The court’s docket included a handful of cases that raised questions about efforts to curb online misinformation and the rights of companies to moderate content on their own platforms, each transforming the way social media is government regulated and consumed. by users.
Instead, the court generally struck a modest note.
“This mandate had the potential to be a referendum on the relationship between the First Amendment and social media, and the cases that reached the court questioned at a fundamental level what role, if any, the government could have in regulating social media. ,” said Alex Abdo, director of litigation at the Knight First Amendment Institute.
“Fortunately, the court acted very carefully,” he said.
Earlier this year, the Supreme Court ruled that public officials can sometimes be sued for blocking their critics on social media, while also stating that such officials “have private lives and their own constitutional rights.”
In a case involving the Biden administration, the justices rejected challenges to federal authorities’ communications with social media companies aimed at combating online misinformation.
They ruled that the Republican attorneys general and private parties who alleged a “censorship campaign” against them online lacked legal standing to bring the case, sidestepping the important First Amendment issue at the heart of the challenge to a procedural resolution.
And on the final day of its busy opinion season, the high court overturned lower court rulings on two state laws that aimed to prevent social media companies from banning users based on their political views. The ruling posed a major challenge to the First Amendment going forward, but appeared to preserve the right of social media companies to make editorial decisions.
“[The term] did not fully resolve all the merits of the issues presented. But overall, I would say this term has been a huge positive for the First Amendment,” said Bob Corn-Revere, chief counsel at the Foundation for Individual Rights and Expression.
“And the court’s reluctance to give final answers in every case was, to me, a further indication of the court’s concern about moving slowly and not hastily finding the wrong answers.”
The judges never claimed to be internet experts. During a discussion last term, while discussing the scope of a liability shield for Internet companies, Justice Elena Kagan joked that she and her colleagues are not the “nine leading experts on the Internet.”
“I mean, we are a court,” she said at the time. “We don’t really know about these things.”
As more issues involving social media reached the Supreme Court this term, the justices demonstrated the same “sense of modesty” in each of their rulings, Corn-Revere said.
“Basically, what the court did was hold the line. Because many new interpretations of [the] The First Amendment was presented,” he said, adding that in each case, the justices reaffirmed the “traditional principles” that the First Amendment protects citizens and private businesses from the government — not the other way around.
While avoiding the big questions of this term, the justices pointed to how future cases involving Internet speech and the rights of social media companies could play out.
For example, the justices seemed inclined to recognize that social media news feeds bear more similarities to traditional media outlets like newspapers, as opposed to common carriers like companies that operate telephone and railroad systems—a framing that could have a huge impact on how social media companies are regulated by the government, said Samir Jain, vice president of policy at the Center for Democracy and Technology.
“It is this framework through which they will look at First Amendment issues here, as opposed to suggestions by some that social media companies really should be treated as common carriers or considered not making editorial decisions,” Jain said.
The high court also appeared to open the door to new questions that could form the basis for future challenges – particularly in relation to artificial intelligence (AI).
Justices Samuel Alito and Amy Coney Barrett raised questions about whether the algorithms used by social media companies to moderate content qualified as real editorial decision-making, or anything else, in concurring opinions for cases involving laws in Texas and in Florida that were challenged by technology industry group NetChoice.
“[The majority] unthinkingly assumes the truth of NetChoice’s unsupported claim that social media platforms—which use secret algorithms to review and moderate an almost unimaginable amount of data today—are as expressive as the newspaper editors who blue-penciled typescripts ago 50 years,” Alito argued.
Jain said it is clear that most justices recognize that in many cases algorithms are “simply implementing human choice,” thus maintaining First Amendment protections. But as Alito and Barrett investigated, that could change if an AI algorithm is “the one making the choices,” he said.
While technology continues to advance, presenting new challenges to the court, the Supreme Court’s latest term demonstrated that justices’ knowledge base on issues involving the Internet has grown, experts agreed.
“I think there is a greater appreciation and understanding of how these online services work,” Jain said. “I don’t think the judges would claim [be] experts, necessarily, still. But I think they certainly have a much better understanding today than they did two years ago.”
This story originally appeared on thehill.com read the full story
