TJ Cleary, Contributing Member 2023-2024
Intellectual Property and Computer Law Journal
I. Introduction
Social media has had a tumultuous relationship with the First Amendment. Whether it is Twitter’s rebranding into a “free speech” platform or controversial bans from social media.[1] Since its inception, social media has been seen as a bastion for freedom of speech and, through censorship and content guidelines, its enemy.[2] Social media companies have had to balance the cultural expectation of freedom of speech and protecting marginalized communities from hate speech.[3] Another concern for social media companies is the use of their platforms as a method for spreading misinformation.[4] In recent years, controversial figures have arisen on social media and, after displaying careless behavior, have been deplatformed.[5]
The advent of advertiser-based revenue creates a complex interaction with free speech. Social media sites make much of their profits from advertisers.[6] As such, the sites must balance advertiser interests and the content they permit or risk losing a fair share of revenue.[7] Social media sites are for-profit companies and have a duty to their shareholders.[8] However, they also have a duty to their users to prevent unwarranted censorship.[9] This blog will discuss how social media platforms must balance the welfare of their users but also the interests of their shareholders.
II. Background
Content Restriction
Since their inception, social media sites have implemented various forms of content restrictions.[10] These restrictions are used not only to incentivize advertisers to use their platforms but also to protect users who are in marginalized groups from hate speech.[11] Social media platforms originally had much more relaxed guidelines.[12] Looking at early social media content, it becomes clear that there was not much in the way of preventing hate speech or misinformation from spreading across various platforms.[13] As social media grew and advertisers began to see the potential of social media as a tool to reach a new generation, tighter restrictions followed.[14] The reliance on advertisers became clear in 2016-2017 when the “adpocalypse” occurred on YouTube.[15]
The “adpocalypse” was a mass exodus of advertisers from the platform.[16] This occurred after the advertisers found out their ads were being run on content featuring hate speech and violence.[17] This mass exodus led to a strong response from YouTube, who created new content guidelines and a demonetization system to ensure that content that fell out of the guidelines was pushed out of the algorithm and into obscurity.[18] Amid these restrictions were cries for freedom of speech.[19] However, social media companies are, first and foremost, for-profit businesses.[20] Calls for free speech are powerful for the individual but not for the shareholder.
Over time, social media users became accustomed to creating advertiser-friendly content.[21] Many mainstream creators would stop using profanity or covering controversial topics.[22] Political content became less monetizable and “news” content is promoted in the algorithm when the creator is an official news source.[23] However, political agents have begun challenging these restrictions as politically motivated.[24] Additionally, with the purchase of Twitter by Elon Musk, freedom of speech has once again found its way to the forefront of social media discourse.[25] With the increasing regulations by states and the huge impact social media plays in the lives of American citizens, it was only a matter of time before the courts got involved.[26]
The First Amendment and the NetChoice Cases
The Supreme Court has extensive First Amendment jurisprudence.[27] Protecting freedom of speech has been a staple for most of the country’s history.[28] Whether it be the courts striking down injunctions of publications or the incorporation of the freedom of speech to the states.[29] The Supreme Court has shown that it is willing to discard laws that are content-based and have created a harsh test when states try to make speech criminal.[30] Recently, the Supreme Court has also looked at whether a state is attempting to compel a private person/entity into speaking.[31] A case titled 303 Creative v. Elenis involved a Colorado state law that required a business to “create speech” they do not believe in.[32] The Court in this case held that a state could not compel a private business to speak about something they do not believe in.[33] This issue is a focal point in the NetChoice cases.[34]
Florida and Texas have recently passed laws preventing social media platforms from removing users “based on the viewpoint of the speaker.”[35] Social media platforms have challenged these laws on a First Amendment basis, arguing that they have the right to police their platforms to prevent misinformation and hate speech.[36] This idea was rejected by the Fifth Circuit but embraced by the Eleventh Circuit, and oral arguments have been heard by the Supreme Court.[37]
Texas argued that it is a violation of an individual’s freedom of speech for social media sites to remove users based on their politics, and as such, prohibiting that discrimination is not unconstitutional.[38] The social media companies have relied on recent precedent to argue that the States are attempting to compel their platforms into hosting speech that they believe to be harmful.[39] As stated earlier, federal courts are split on this issue, with some courts siding with the states on this issue, while others have sided with NetChoice.[40] Another upcoming case in the Supreme Court is Murthy v. Missouri, which covers the question of when content guidelines become state action.[41]
III. Discussion
Freedom of Speech or Freedom of Business
The balance between the state and social media is a prime issue in these cases. However, there are also the interests of the shareholders. Social media companies are, at their very core, businesses. Experts estimated hosting inappropriate or hateful content lost YouTube hundreds of millions of dollars.[42] While YouTube and other social media sites are built on creators and users, at the end of the day they are still businesses whose aim is to generate revenue. Social media sites have been becoming more “ad-friendly, stemming from the enormous amount of business they could lose.[43] The Texas law, titled HB 20, would prohibit social media platforms from banning any “viewpoint-based censorship.”[44] Executives at Amazon or Coca-Cola do not want to see an advertisement of their products next to a post from a Nazi.[45]
A question the Court will have to address in these cases is whether they believe that a private business can be forced to host content that will actively harm its business interests.[46] There is a strong argument that social media has become the new public forum.[47] In First Amendment law, if an area is labeled a public forum, creating laws regulating speech becomes much more difficult.[48] If social media was determined to be a public forum, they would have to create looser regulations and allow for non-advertiser friendly content.[49] Social Media is certainly beginning to replace traditional public forums. Instead of soap boxes in public squares, people congregate around posts on X (Twitter) or Facebook. This case presents the question to the Court of whether they value freedom of speech and the First Amendment over the right of a business to police content and ideas that they believe are unacceptable and unprofitable.[50] The Court will likely side with NetChoice for the above reason and to keep consistent with its recent opinion in 303 Creative.[51]
IV. Conclusion
As stated above, social media has become the public forum of our time.[52] However, its inherent for-profit nature creates incentives that the public square did not have. Now, the public forum has the chance to make money from other corporations, whereas its value was previously in the marketplace of ideas.[53] The deluge of First Amendment issues surrounding social media has been building over the past decade and will shape First Amendment law for years to come.[54] It will be interesting to see if First Amendment jurisprudence shifts with our new public forums or stays anchored in a previous era.
[1] Dipayan Ghosh, Are We Entering a New Era of Social Media Regulation?, Harvard Business Review, (Jan. 14 2021), https://hbr.org/2021/01/are-we-entering-a-new-era-of-social-media-regulation.
[2] Peter Suciu, Is Elon Musk’s Free Speech Absolutism Compatible with Social Media, Forbes, (Dec. 3 2023),https://www.forbes.com/sites/petersuciu/2023/12/03/is-elon-musks-free-speech-absolutism-compatible-with-social-media/?sh=7f63b9bc6beb.
[3] Conor Cowley, The Tumultuous Relationship Between Social Media and Hate Speech, Tech.co, (Jan. 4 2018) https://tech.co/news/relationship-social-media-hate-speech-2018-01.
[4] Steven Lee Myers, How Social Media Amplifies Misinformation More Than Information, New York Times, (Oct. 13 2022),
[5] Will Oremus, Tech giants banned Trump. But did they censor him?, Washington Post, (last updated Jan. 7 2022),
https://www.washingtonpost.com/technology/2022/01/07/trump-facebook-ban-censorship/.
[6] Social Media Advertising – Worldwide, Statista, (last visited Mar. 1 2024), https://www.statista.com/outlook/dmo/digital-advertising/social-media-advertising/worldwide.
[7] Julia Alexander, The Golden Age of YouTube is Over, The Verge, (Apr. 5 2019), https://www.theverge.com/2019/4/5/18287318/youtube-logan-paul-pewdiepie-demonetization-adpocalypse-premium-influencers-creators.
[8] Nathan Reiff, Social Networking Companies and What They Own, Investopedia, (Sep. 18 2023), https://www.investopedia.com/social-networking-companies-6830677.
[9] Andrew Grossman, Shining a Light on Censorship: How Transparency Can Curtail Government Social Media Censorship and More, CATO Institute, (Oct. 3 2023), https://www.cato.org/briefing-paper/shining-light-censorship-how-transparency-can-curtail-government-social-media.
[10] Ahmed Medien, The Evolution of Content Moderation Rules Throughout The Years, Medium, (Apr. 1 2021), https://medium.com/checkstep/the-evolution-of-content-moderation-rules-throughout-the-years-bccc9859cb31.
[11] Facebook Community Standards, Meta, (last visited Mar. 1 2024), https://transparency.fb.com/policies/community-standards/, Community Guidelines, YouTube, (last visited Mar. 1 2024), https://www.youtube.com/howyoutubeworks/policies/community-guidelines/.
[12] Riya, The History of Social Media, Feedough, (Aug. 11 2023), https://www.feedough.com/the-history-of-social-media/.
[13] Id.
[14]YouTube De-Monetization Explained, Medium, (Sep. 2 2016), https://medium.com/internet-creators-guild/youtube-de-monetization-explained-44464f902a22.
[15] Rachel Dunphy, Can YouTube Survive the Adpocalypse?, Intelligencer, (Dec. 28 2017), https://nymag.com/intelligencer/2017/12/can-youtube-survive-the-adpocalypse.html.
[16] Id.
[17] Id.
[18]Adi Robertson, YouTube is fighting the ‘adpocalypse’ with a less trigger-happy flagging system, The Verge, (Oct. 27 2017),https://www.theverge.com/2017/10/27/16557142/youtube-new-demonetization-algorithm-rollout-false-positive.
[19] Randy Cantz, Adpocalypse: How YouTube Demonetization Imperils the Future of Free Speech, Berkely Political Review, (May. 1 2018), https://bpr.berkeley.edu/2018/05/01/adpocalypse-how-youtube-demonetization-imperils-the-future-of-free-speech/.
[20] https://aniview.com/most-profitable-social-media-platforms-in-2022/
[21]Advertiser-friendly content guidelines, YouTube Help, (last visited Mar. 1 2024), https://support.google.com/youtube/answer/6162278?hl=en.
[22] Mitchell Clark, YouTube creators are ducking outraged by its swearing policy, The Verge, (Jan. 13 2023), https://www.theverge.com/2023/1/13/23553746/youtube-swearing-advertising-policy-change.
[23] How does YouTube elevate quality information for viewers?, YouTube, (last visited Mar 22 2024), https://www.youtube.com/howyoutubeworks/our-commitments/fighting-misinformation/#elevating-quality-information.
[24] Moody v. Netchoice LLC, Oyez, (last visited Mar. 1 2024), https://www.oyez.org/cases/2023/22-277.
[25] Dan Milmo, Elon Musk defends stance on diversity and free speech during tense interview, The Guardian, (Mar 18 2024), https://www.theguardian.com/technology/2024/mar/18/elon-musk-defends-stance-diversity-free-speech-interview-don-lemon.
[26] Dipayan Ghosh, Are We Entering a New Era of Social Media Regulation?, Harvard Business Review, (Jan. 14 2021), https://hbr.org/2021/01/are-we-entering-a-new-era-of-social-media-regulation.
[27] First Amendment, Cornell Law School, (last visited Mar. 21, 2024), https://www.law.cornell.edu/wex/first_amendment.
[28] Freedom of Speech, History.com, (Dec. 4 2017), https://www.history.com/topics/united-states-constitution/freedom-of-speech.
[29]Top of Form
N.Y. Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140 (1971), Bottom of FormGitlow v. New York, 268 U.S. 652, 45 S. Ct. 625 (1925).
[30] Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827 (1969).
[31] 303 Creative LLC v. Elenis, 600 U.S. 570, 143 S. Ct. 2298 (2023).
[32] Id. at 2307.
[33] Id. at 2322.
[34] Devon Ombres, Nicole Alvarez, The NetChoice Cases: Will the Supreme Court Turn First Amendment Law on Its Head?, CAP 20 (Feb. 20 2024),https://www.americanprogress.org/article/the-netchoice-cases-will-the-supreme-court-turn-first-amendment-law-on-its-head/.
[35] NetChoice, LLC v. AG, Fla., 34 F.4th 1196 (11th Cir. 2022), Netchoice, L.L.C. v. Paxton, 49 F.4th 439 (5th Cir. 2022).
[36]NetChoice v. Paxton,Petitioner’s Br., (Nov. 30 2023), https://www.supremecourt.gov/DocketPDF/22/22-555/291896/20231130135911119_No.%2022-555_NetChoice%20and%20CCIAs%20Brief.pdf.
[37] NetChoice, LLC v. AG, Fla., 34 F.4th at 1196.
[38] NetChoice v. Paxton,Respondent’s Br., (Jan. 16 2024), https://www.supremecourt.gov/DocketPDF/22/22-555/295811/20240116145554309_22-555%20Brief%20for%20Respondent.pdf.
[39] Petitioner’s Br., supra note 25.
[40] NetChoice, LLC v. AG, Fla., 34 F.4th at 1231, Netchoice, L.L.C. v. Paxton, 49 F.4th at 494.
[41] Murthy v. Missouri, SCOTUS Blog, (last visited Mar. 1 2024), https://www.scotusblog.com/case-files/cases/murthy-v-missouri-3/.
[42]Julien Rath, Analysts predict the YouTube advertiser boycott will cost Google $750 million, Business Insider, (Mar. 27 2017), https://www.businessinsider.com/analyst-predicts-the-youtube-ad-boycott-will-cost-google-750-million-2017-3.
[43] Introduction to the Advertising Standards, Meta, (last visited Mar. 21 2024), https://transparency.fb.com/policies/ad-standards/, Advertiser-friendly content guidelines, YouTube Help, (last visited Mar. 21 2024), https://support.google.com/youtube/answer/6162278?hl=en.
[44] Petitioner’s Br., supra note 25.
[45] Michele Castillo, It’s not just Google’s problem: Brands struggle to keep online ads away from offensive content, CNBC, (Mar. 20 2017), https://www.cnbc.com/2017/03/20/google-online-advertising-adjacency-problem.html.
[46] Petitioner’s Br., supra note 25.
[47] David McGee, What Constitutes a Public Forum on Social Media?, American Bar Association, (last visited Mar. 21 2024), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/public-forum-social-media/.
[48] David L. Hudson Jr, Public Forum Doctrine, Free Speech Center, (last updated Feb. 18 2024), https://firstamendment.mtsu.edu/article/public-forum-doctrine.
.
[49] Ethan Becker, Should Social Media Sites Be Considered A Public Forum?, Medium, (Aug. 4 2018), https://medium.com/the-collective-mind/should-social-media-sites-be-considered-a-public-forum-6a423437ae86.
[50] Petitioner’s Br., supra note 25.
[51] 303 Creative LLC v. Elenis, 600 U.S. at 2321.
[52] McGee, supra note 43.
[53] Megan J, The Argument for a Publicly Owned Social Media, Medium, (May 14 2020), https://megdotjor.medium.com/the-argument-for-a-publicly-owned-social-media-46a1c698856.
[54] Deborah Fisher, Upcoming First Amendment cases in the U.S. Supreme Court, Free Speech Center, (Nov. 8 2023), https://firstamendment.mtsu.edu/post/upcoming-first-amendment-cases-in-the-u-s-supreme-court/.
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