From Take-Down Duties to Obligations to Uphold Free Speech

Calls for harder regulation of social media platforms have echoed worldwide for a while. In particular, the effect of platforms’ content moderation on freedom of expression has recently engaged lawmakers in Europe and the US. What is particularly salient with this fresh wave of social media legislation is that it does not just require platforms to remove specific content. On the contrary, the novel social media laws can demand that platforms do not remove particular content. This blog post will present the recent social media laws adopted in Europe and the US that protect users’ free speech exercise against platforms and discuss the challenges they face in the coming year.

Platform Laws in the Limelight on Both Sides of the Atlantic

In Europe, the EU adopted the Digital Services Act (DSA) in 2022. The regulation imposes various duties related to content moderation on social media platforms and will become fully effective in February 2024.

There are several ways in which the DSA safeguards users’ free speech interests against platforms. It imposes obligations on platforms to include clear information about content restrictions in their terms of service and pay due regard to free speech rights of users when applying and enforcing these restrictions (Art. 14). Platforms must also provide a statement of reasons to users whose content has been restricted or whose account has been suspended or terminated (Art. 17). Furthermore, platforms are required to set up an internal complaint-handling system, which enables users to complain about platforms’ decisions to limit their content or accounts (Art. 20).

In the US, legislative offensives against social media platforms accelerated after the major platforms blocked former president Donald Trump from their services in January 2021 following the storming of the US Capitol in Washington, D.C. Two social media laws that have received the most attention are the bills passed by lawmakers in Florida and Texas in 2021.

The Florida law prohibits social media platforms from deplatforming political candidates. In addition, it is not permissible for platforms to algorithmically prioritise or shadow ban content by or about political candidates. Moreover, platforms are not allowed to censor, deplatform or shadow ban journalistic enterprises based on the content they have published. The Florida law further requires platforms to publish their standards for censoring, deplatforming, and shadow banning content and apply them in a consistent manner among users. Additionally, platforms must notify censored, shadow-banned and deplatformed users and give a thorough rationale explaining the reasons for the decision. The Florida law accordingly requires platforms to provide preferential treatment to political candidates and journalistic enterprises.

The Texas law, in turn, prohibits social media platforms from censoring users and their expression based on viewpoint. The Texas law further requires platforms to publish information about the content allowed on their services. Moreover, platforms must set up a complaint system that enables users whose content has been removed to submit a complaint. Users whose content platforms remove must also be notified, explained the reasons for the removal, and allowed to appeal the decision. The Texas law thus does not demand that platforms favour particular users or content but instead imposes a general prohibition of viewpoint discrimination.

Washington Homerun and Brussels Breakthrough?

So, what does 2024 have in store for the social media laws presented above? The DSA and the US laws will all face a moment of truth during the coming year – albeit in different ways.

The DSA will become fully applicable on 17 February 2024, and the key issue to keep an eye on is how well it will work in practice. While the potential of the DSA to rein in the power of platforms is broadly acknowledged, it is also recognised that its success will depend on the effectiveness of its enforcement. Already in December 2023, the European Commission launched the first proceedings under the DSA against X to assess whether the platform has breached the rules in the DSA concerning, among other things, content moderation. 2024 will thus show how sharp teeth the DSA has in curbing the power of private platforms.

While the application and enforcement of the DSA are the central issues in Europe, the US social media laws may not even get that far. On the other side of the Atlantic, the constitutionality of the laws regulating social media platforms’ content moderation is the principal question. In 2024, the US Supreme Court will review the compatibility of the Florida and Texas laws with the constitutional right to freedom of speech under the First Amendment. More specifically, the Court will determine the constitutionality of the restrictions of platforms’ content moderation and the requirements that platforms provide individualised explanations for censored users.

The free speech rights of social media platforms are the central issue the US Supreme Court needs to tackle in the case. Are social media platforms like Facebook and X exercising their freedom of expression when restricting content or suspending users? If so, does government regulation of platforms’ content moderation violate the companies’ freedom of speech? The US Courts of Appeals that reviewed the Florida and Texas laws reached conflicting conclusions in this regard. The Court of Appeals for the Eleventh Circuit found that social media platforms’ content moderation is protected speech and that the Florida law thus violates the First Amendment. In contrast, the Court of Appeals for the Fifth Circuit held the Texas law to be constitutional, as the Court did not consider platforms’ content moderation protected by the First Amendment. The forthcoming ruling of the US Supreme Court will hopefully clarify the constitutional framework for regulating the content moderation of social media platforms.

Consequently, 2024 will entail a showdown for social media laws on both sides of the Atlantic. The focus in Europe is on the success of the practical enforcement of European platform regulation. In contrast, the spotlight in the US will be on the constitutionality of government regulations targeting content moderation of social media platforms. The coming year will show whether the state laws score a homerun at the US Supreme Court and whether the DSA will be the definitive breakthrough for European (and global) social media regulation.

Anni Carlsson is a doctoral candidate in constitutional law at the Faculty of Law at Uppsala University in Sweden. Her research deals with the constitutional protection of freedom of expression in the context of social media. She has previously been a visiting researcher at the DCU Law and Tech Research Cluster.