Earlier this month, the Congressional Internet Caucus Academy (CICA) hosted a panel discussion titled, “Tech Platforms and the 1st Amendment: Impact of Supreme Court Rulings.”
Separate from the Congressional Member Organization known as the Congressional Internet Caucus, CICA is a project launched by the Internet Education Foundation (IEF), a 501(c)(3) nonprofit organization dedicated to promoting informed policy making and digital literacy for all Internet stakeholders. The panel was moderated by Nadine Farid Johnson (Knight First Amendment Institute) and hosted panelists Steve DelBianco (NetChoice), Yaël Eisenstat (Cybersecurity for Democracy), Olivier Sylvain (Fordham University School of Law), and Vera Eidelman (ACLU).
In an effort to prevent social media platforms from deplatforming political officials, Florida and Texas enacted laws in 2021 that attempted to regulate how social media platforms exercised their content moderation guidelines and policies. However, NetChoice – an association of businesses and online consumers – challenged these laws on the basis of a violation of both the First Amendment and Section 230 of the Communications Decency Act. After hearing oral arguments in February of this year, the Supreme Court decided on both NetChoice, LLC v. Paxton, and Moody v. NetChoice, LLC at the beginning of this month. There was no clear cut decision; in fact, the Supreme Court vacated and remanded the case to lower courts, citing the lower courts’ lack of proper analysis in relation to the First Amendment and the regulation as part of its reasoning.
After panelist Vera Eidelman set the scene with an extensive description of the First Amendment, she also pointed out that the Supreme Court justices made it clear in the majority that the First Amendment applies to activities both online and offline, with social media platforms exercising these protected rights at their own discretion. However, as online platforms exercise these rights, we encounter blurred lines, a facet of internet governance that panelist Steve DelBianco touched upon: how do we ensure we get content moderation “right,” while pleasing both the user community and the advertisers?
Alongside Steve and Vera’s statements, panelist Yaël Eisentat offered an alternative perspective through highlighting some main points from the Supreme Court justices’ opinions: a need for further transparency in the tech industry’s algorithm explanations, and the possibility that not every action taken by a social media company will qualify as expression protected by the First Amendment. What this would look like, however, is not specified–the Supreme Court has left the door open as to what such legislation would look like.
As the conversation continued, a common theme arose: the gray area that is internet governance – more specifically, content moderation – and a need for both Congress and the Supreme Court to modernize. It’s in the intersection of technology and policy that the concrete wires and machines that power our networks become much more abstract and opaque, even with the Internet’s nearly 60 years of existence. In the midst of this current lack of clarity, panelist Olivier Sylvain emphasized that cases such as these open up space for Congress and regulators to think creatively about navigating the territory and additional considerations accompanied by conversations about content moderation in online spaces, namely that of consumer protections and the meaning of “free expression.”
As Congress thinks through such considerations for legislation, TechCongress can step in to fill in the gaps. Since 2016, we have worked tirelessly to bridge the gap between technology and policy, placing 109 fellows in Congressional offices and committees as subject matter experts in pre-existing and emerging technology policy issues. While policymakers work on up-to-date content moderation and transparency legislation that reflect how the Internet operates today, it is imperative they are backed by tech talent eager to pitch in based on their own backgrounds in technical expertise.
If you believe you have the wealth of knowledge necessary to guide and support such conversations, please consider applying for our Congressional Innovation Fellowship for early to mid-career technologists! Applications close on August 5th, 2024.