Conflicts Between E.U. and U.S. Social Media Regulation

by Ross Chambers, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

Social media has revolutionized how information is shared across the world. The use of social media grew the global economy and allowed for the quick dissemination of important information. However, social media led to a rise of disinformation and harmful content. Several states in the United States (“U.S.”) and the European Union (“EU”) have passed legislation to address what content social media companies must remove.¹ These laws are often in conflict with each other and present challenges to social media companies. Additionally, the legislation proposed by some states in the U.S. must comply with the First Amendment.

This article discusses the differences between social media regulation in the EU and proposed legislation in various U.S. states. Part II examines the requirements set out by legislation across a variety of U.S. states and the EU. Part III analyzes the Fifth Circuit’s decision in NetChoice v. Paxton in light of the Supreme Court’s decision in 303 Creative v. Elenis. Part III also discusses the differences between EU and U.S. laws and how they could impact social media companies.

II. Background

In 2021, Texas passed House Bill 20 (“H.B. 20”), which prevents social media companies with more than 50 million users from censoring posts by Texas residents based on the viewpoint expressed in the post.² The bill defines censoring as “to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against.”³ H.B. 20 allows either a user or the Texas Attorney General to bring an action against a social media platform for injunctive relief and costs.⁴ In response to H.B. 20, a social media trade association brought suit claiming H.B. 20 violated the First Amendment rights of the social media companies.⁵

The Fifth Circuit rejected the First Amendment claims brought by the social media companies and held H.B. 20 could go into effect.⁶ The Fifth Circuit relied on the common carrier doctrine to support their reasoning.⁷ The Fifth Circuit held that platforms are communications firms that hold themselves out to the public and are affected by public interest, therefore, the common carrier doctrine is applicable.⁸ The court also reasoned that the market dominance of the platforms is reasonable for the application of the common carrier doctrine.⁹ Finally, the court heavily relied on Rumsfeld v. Forum for Academic and Institutional Rights, Inc. and held that H.B. 20 regulates platforms’ conduct rather than their speech.¹⁰ The Court reasoned that H.B. 20 does not compel platforms to speak or restrict their ability to speak, it only limits their ability to remove other user’s speech.¹¹

The European Union passed the Digital Services Act (“DSA”) which imposes tighter regulation on social media companies.¹² Platforms are not generally liable under the DSA for the content posted by third-parties.¹³ However, if the platform obtains knowledge of illegal content, it must act expeditiously to remove it.¹⁴ If the platform does not remove the content, it loses its third-party content liability shield.¹⁵ Under the DSA, content flaggers would notify platforms of illegal content based on country specific laws.¹⁶ For better or worse, EU countries restrict significantly more speech than the U.S. For example, Germany outlaws speech that denies the Holocaust.¹⁷

III. Discussion

The Supreme Court recently granted certiorari to decide the split between the Fifth and Eleventh Circuits.¹⁸ Under long standing First Amendment precedent, the Supreme Court will likely reverse the Fifth Circuit’s decision. In Miami Herald v. Tornillo, a Florida law allowed political candidates who are criticized by a newspaper to have their response published by that newspaper.¹⁹ The Supreme Court said that a law commanding a newspaper to publish certain speech operates in the same sense as a law forbidding it from publishing certain speech.²⁰ The Court struck down the Florida law, holding that press reasonability, like other virtues, cannot be legislated.²¹

While several historical First Amendment cases lean in favor of reversing the Fifth Circuit, the most recent and persuasive is 303 Creative v. Elenis.²² In 303 Creative, Colorado law prohibited a business open to the public from discriminating based on sexual orientation.²³ The Supreme Court held that the Colorado law violated the compelled speech doctrine under the First Amendment.²⁴ The Supreme Court discussed several arguments the Fifth Circuit relied on in Paxton.²⁵

In Paxton, the Fifth Circuit held H.B. 20 fell within “the historical ambit of permissible common carrier regulation.”²⁶ However, in 303 Creative, the Supreme Court said public accommodations laws are often imposed on common carriers who exercise “something like monopoly power.”²⁷ No social media company exercises monopoly, or near monopoly power that other common carriers like railroads or public utilities do.²⁸ There are numerous different social media companies that are continually competing with each other. For example, Facebook was the most dominant social media company during the 2010s but has recently shifted its strategy to more resemble TikTok.²⁹

Additionally, in Paxton, the Fifth Circuit reasoned that the common carrier doctrine applied to platforms because they have “an effective monopoly over [their] particular niche of online discourse.”³⁰ This is similar reasoning to the Tenth Circuit in 303 Creative, before the decision was reversed by the Supreme Court.³¹ The Tenth Circuit had reasoned the website designer was similar to a monopoly.³² Refusing to create a wedding website for LGBT consumers would force them to inferior markets because the unique services are unavailable elsewhere.³³ This is an argument the Supreme Court ultimately rejected.³⁴ Simply because some platforms cater to a unique category of content does not permit Texas to compel them to speak a certain way.³⁵

Finally, 303 Creative dispenses with the Fifth Circuit’s use of Rumsfeld. The Court reiterated that based on precedent, the government may sometimes “require[e] the dissemination of purely factual and uncontroversial information.”³⁶ Based on this reasoning, the Court held that Colorado tried to impose more than an incidental burden on speech.³⁷ The Court continued, saying Rumsfeld reaffirmed that the government may not “affect a ‘speaker’s message’ by ‘forc[ing] her to accommodate other views”³⁸ Furthermore, in defending its anti-discrimination law, Colorado also relied heavily on Rumsfeld.³⁹ However, during oral arguments, Chief Justice Roberts, the author of the Rumsfeld decision, said “all they really had to do was give them an empty room.”⁴⁰

If the Fifth Circuit’s decision is upheld, there would be significant tension between EU regulation and U.S. law. H.B. 20 prohibits large social media companies form blocking, banning, removing, deplatforming, or restricting a post based on the viewpoint of the expression, unless the post violates federal or Texas law.⁴¹ However, under the DSA, in order to be immune from third-party liability, social media companies must remove illegal content after they have obtained knowledge of it.⁴² Therefore, a Texas resident could make a social media post that denies the Holocaust and, under H.B. 20, the social media company would not be able to restrict it’s visibility or remove the post.⁴³ However, several European countries have laws restricting Holocaust denial speech and if the post is flagged the company would be required to remove it under the DSA.⁴⁴ Under H.B. 20 a social media company cannot remove posts based on viewpoint, however the company’s refusal to remove such a post would violate the DSA.⁴⁵

The DSA also contrasts significantly with U.S. federal law, commonly referred to as Section 230.⁴⁶ Currently, under U.S. federal law, there are no conditions for platforms to receive third-party liability immunity.⁴⁷ However, there has been push from both political parties to reform U.S. law to not provide platforms with blanket immunity.⁴⁸ Democrats have pushed for reform in recent years due to an increase in misinformation and hate speech on platforms.⁴⁹ Republican Senator Marco Rubio has also previously introduced legislation similar to H.B. 20.⁵⁰ The DISCOURSE Act would remove third-party liability for platforms who engage in viewpoint discrimination.⁵¹ If federal legislation similar to the DISCOURSE Act were passed, it would present significant challenges for social media companies. If the DISCOURSE Act were enacted, platforms would need to choose which jurisdiction they would want to lose third-party liability in.⁵² If platforms removed the content, they would lose liability immunity in the U.S.⁵³ If they do not remove the content, they would lose liability immunity in the EU.⁵⁴

IV. Conclusion

With social media companies continuing to expand their reach, the question of what speech they can remove is becoming a more prevalent issue. The Supreme Court’s recent decision in 303 Creative provides insight on how the Court might rule in Paxton. However, the differences between EU and U.S. state laws regarding what social media must remove still presents significant challenges for social media companies.

Cover Photo by mkhmarketing on Flickr

Ross Chambers

Ross Chambers is a 3L law student at UC. Prior to law school, he received a Bachelor of Science in both Accounting and Finance from the University of Tennessee at Chattanooga and plans to practice tax law. In his free time Ross enjoys reading, golfing, and spending time with family.

References

1
Commission Regulation 2022/2065, art. 1, 2022 O.J (L 277); see also H.B. 20, 87th Leg., 2nd Sess. (Tex. 2021).
2
H.B. 20, 87th Leg., 2d Sess. (Tex. 2021).
3
Id.
4
Id.
5
Id.
6
NetChoice, LLC v. Paxton, 49 F.4th 439, 445 (5th Cir. 2022).
7
Id. at 469.
8
Id. at 473.
9
Id. at 477.
10
Id. at 461-62.
11
Id.
12
Commission Regulation 2022/2065, art. 1, 2022 O.J (L 277).
13
Id. at 22.
14
Id. at 6.
15
Id.
16
Id.
17
Strafgesetzbuch [German Penal Code] §130(3), https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html.
18
Petition for Writ of Certiorari, Netchoice, LLC v. Paxton, 216 L.Ed.2d 1313 (2023) (No. 22-555).
19
Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 244 (1974).
20
Id. at 256.
21
Id.
22
303 Creative LLC v. Elenis, 600 U.S. 570, 581 (2023).
23
Id. at 589-91.
24
Id. at 596.
25
Id. at 589-91.
26
NetChoice, LLC v. Paxton, 49 F.4th 439, 469 (5th Cir. 2022).
27
303 Creative LLC v. Elenis, 600 U.S. 570, 590 (2023).
28
Belle Wong, Top Social Media Statistics and Trends of 2023, Forbes (May 18, 2023), https://www.forbes.com/advisor/business/social-media-statistics/.
29
Mike Isaac, Meta Tweaks Facebook App to Act More Like TikTok, N.Y. Times (July 21, 2022), https://www.nytimes.com/2022/07/21/technology/facebook-app-changes-home.html.
30
NetChoice, LLC v. Paxton, 49 F.4th 439, 476 (5th Cir. 2022).
31
303 Creative LLC v. Elenis, 6 F.4th 1160, 1180 (10th Cir. 2021), rev’d, 600 U.S. 570 (2023).
32
Id.
33
Id.
34
303 Creative LLC v. Elenis, 600 U.S. 570, 589-91 (2023).
35
Id.
36
Id. at 596.
37
Id.
38
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39
Id.
40
Transcript of Oral Argument at 101, 303 Creative v. Elenis, 600 U.S. 570 (2023) (No. 19-1413).
41
H.B. 20, 87th Leg., 2d Sess. (Tex. 2021).
42
Commission Regulation 2022/2065, art. 6 § 1(b), 2022 O.J (L 277).
43
H.B. 20, 87th Leg., 2d Sess. (Tex. 2021).
44
Id.
45
Id.
46
47 U.S.C. § 230(c) (2018).
47
Id.
48
Chris Riley & David Morar, Legislative Efforts and Policy Frameworks Within the Section 230 debate, Brookings Inst. (Sept. 21, 2021), https://www.brookings.edu/articles/legislative-efforts-and-policy-frameworks-within-the-section-230-debate/.
49
Shannon Bond, Democrats Want to Hold Social Media Companies Responsible For Health Misinformation, NPR (July 22, 2021), https://www.npr.org/2021/07/22/1019346177/democrats-want-to-hold-social-media-companies-responsible-for-health-misinformat#:~:text=Democrats%20say%20Section%20230%20allows,conservatives%20more%20harshly%20than%20others.
50
Disincentivizing Internet Service Censorship of Online Users and Restrictions on Speech and Expression Act, S. 921, 117th Cong. (2023), https://www.rubio.senate.gov/wp-content/uploads/_cache/files/8fb39a08-108c-40a0-863a-5e3c28ed9fe0/A142938A5BDD60AE25262FFB85103C21.discourse-act-text.pdf.
51
Id.
52
Id.
53
Id.
54
Commission Reg. 2022/2065, supra note 42.

I. Introduction

II. Background

III. Discussion

IV. Conclusion

Author

References

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