To save free speech, Supreme Court should rule against ‘free speech’ laws | Opinion

During the hard-fought 2020 election campaign, social media companies imposed stunning censorship on everything from dissenting COVID views to the now-validated Hunter Biden laptop story. In response, legislatures in Texas and Florida passed laws banning viewpoint suppression on social media. Unfortunately, if the Supreme Court allows laws like these to stand, they will create incentives for social media companies to ban even more topics from discussion.

In trying to save free speech, conservatives are laying the legal grounds to destroy it.

The natural human response to disaster is to scramble — to do something. The respective laws in Texas and Florida illustrate that impulse, and the eventual vindication of suppressed viewpoints would seem to add to their validity. Conservatives overlook the fact that mandating the free expression of all viewpoints on a given topic will only increase controversy and ultimately incentivize social media platforms to censor whole topics from the public forum.

Under the Texas law, HB 20, for example, not only do platforms have to allow all expression of all viewpoints for a given topic, but they cannot discriminate in how posts are potentially monetized. This limits platforms’ ability to satisfy advertisers who are necessarily cautious about what gets associated with their branding. Companies want more control over where their ads are placed, an understandable demand after Bud Light’s partnership with Dylan Mulvaney resulted in an estimated $395 million loss for the company.

In the case of X (formerly known as Twitter), even the perception of less moderation scared away advertisers once Elon Musk bought the company, costing X an estimated $75 million. If platforms lose control over moderation of content, including monetization decisions, the potential revenue loss from advertisers would be enough to compel social media companies to initiate a serious crackdown on what topics of discourse are allowed on the platform across the board. Rather than allowing equal views on controversial topics, those topics would be barred from discussion altogether.

Even beyond the monetization aspect, these laws can create further headaches for social media platforms. Treating all viewpoints of a topic equally leads to absurd situations. Requiring a platform to treat the denunciation of racism the same as the celebration of racism would inevitably lead to user decline.

Most social media sites use algorithms to promote relevant content to users, but under these laws, algorithms have much less agency to foster curated content and dismiss ugly and unhelpful speech. As a free speech proponent, I think people should be allowed to say all kinds of things, however abhorrent, but that doesn’t mean I think platforms should be required to promote them. By requiring absolute equal treatment of all content, these laws in effect require promotion of some heinous speech, as reasonable algorithmic sorting would no longer be allowed to drop content seen as negative or controversial.

This has real implications for platform user bases. We consistently see curated and moderated communities have much larger web presences than controversial ones — e.g. Reddit’s 73 million daily users compared to 4chan’s 11 million monthly visitors. Even the perception of more controversial posts on X caused the user base count to decline by about 33 million since 2022. Rather than risk similar declines, it seems much more likely that social media companies will continue to expand their terms of service to prevent discussions of controversial topics altogether.

If, however, the government decides that online platforms qualify as common carriers, and certain topics must be allowed for discussion, things could get worse. It’s not inconceivable for the federal government to create guidelines for speech that it deems odious enough to be censored without being outright illegal. These laws could pave the way toward codifying the informal governmental interference in social media we saw in 2020. That is not a prospect that bodes well for the airing of conservative viewpoints.

The state of social media free speech in 2021 was not ideal, but in the haste of passing these laws to protect free speech online, conservatives risk killing it altogether. When we pass sweeping laws to get the government more involved, we compromise true conservative values of limited government, free speech, and individual responsibility. It’s my hope that the Supreme Court strikes down the online “free speech” laws in order to save online free speech.

Donald Kimball is the communications manager for Washington Policy Center, a contributor for Young Voices and America’s Future. You can find him on X (@KimballDonald) and more of his work at kimballdonald.com.