Do social media sites have a First Amendment right to choose which information they publish on their websites?

That’s the question the Supreme Court will address this term when it reviews two laws from Texas and Florida that would force businesses such as Facebook and YouTube to carry certain content that they do not want to feature. Under the guise of “prohibiting censorship,” these laws seek to replace the private entities’ editorial voice with preferences dictated by the government.

The court’s decision will define the public’s experience on the internet: How much control will the government have over public debate? How vigorous will our online conversations be if platforms feel pressured to avoid controversial topics? What art, news, opinion, and communities will we discover on the platforms that are so central to how we communicate when the government mandates what content and which speakers must appear?

To enable online speech and access to information, the ACLU has long urged social media companies to exercise great caution when deciding whether and how to remove or manage lawful posts. On the very largest platforms, free expression values are best served if companies choose to preserve as much political speech as possible, including the speech of public figures. But, regardless of what platforms ought to permit as a matter of corporate policy, the government can’t constitutionally mandate what they ultimately choose.

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Source: American Civil Liberties Union

Moreover, platforms have no choice but to prioritize some content over others — something always has to come first. They make decisions to remove, demote, or hide lawful content to minimize speech that the business does not want to be associated with, that puts off their consumers or advertisers, and that is of little interest or value to their users. And they don’t all make the same decisions, reflecting their different editorial choices. Facebook, for example, prohibits nudity while Twitter, now X, allows it.

Motivated by a perception that social media platforms disproportionately silence conservative voices, some states have sought to regulate platforms’ curatorial decisions. The Florida law at issue before the Supreme Court prohibits social media companies from banning, in any way limiting the distribution of posts by, or prioritizing posts by or about political candidates; it also prohibits taking any action to limit distribution of posts by “journalistic enterprises.” The Texas law bars larger social media platforms from blocking, removing, or demonetizing content based on the users’ views.

The government’s desire to have private speakers distribute more conservative — or for that matter, progressive, liberal, or mainstream — viewpoints is not a permissible basis for regulating the editorial decisions of private platforms. Choosing what not to publish and how to prioritize what is published is protected expression. In deciding what books to release or sell, publishers and booksellers are unquestionably exercising their free speech rights, as are curators of an art exhibit, and editors deciding what op-eds to publish in a newspaper. The government can’t make the decision for them.

This is why in the lower courts’ review of these laws, the ACLU submitted two friend-of-the-court briefs arguing that it is unconstitutional to force social media and other communications platforms to publish unwanted content.

This has long been settled law. For example, in a case called Miami Herald v. Tornillo, the Supreme Court held that a law requiring newspapers that published criticisms of political candidates to also publish any reply by those candidates was unconstitutional. The law had forced private publishers to carry the speech of political candidates, whether they liked it (or agreed with it) or not. As the Supreme Court explained in striking down the law, a government-mandated “right of access inescapably dampens the vigor and limits the variety of public debate.”

The Supreme Court’s established precedent for protecting editorial discretion applies to online platforms as well. Private speech on the internet should receive at least as much First Amendment protection as print newspapers and magazines do. And social media platforms, in combining multifarious voices, exercise their First Amendment rights while also creating the space for the free expression of their users.

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Source: American Civil Liberties Union

These entities shouldn’t be required to publish, and their users shouldn’t be forced to contend with, speech that doesn’t fit the expressive goals of the platform or of the community of users. Nor should platforms be required to avoid certain topics entirely because they don’t want to publish or distribute all viewpoints on those topics. Under the guise of “neutrality,” if these laws go into effect, we will be confronted by a lot more distracting, unwanted, and problematic content when using the internet.

For example, a platform should be able to publish posts about vaccination without having to present the views of a political candidate recommending that people drink bleach to combat COVID-19. Similarly, a platform should be able to welcome posts about anti-racism without having to host speech by neo-Nazis. And a social media site should be able to host speakers questioning the scientific basis for climate change or affirming the existence of God without having to publish contrary viewpoints. If people want any of this material, they can seek it out. But the government cannot force it upon either the platforms or the public that relies on them.

Social media and other online platforms are vital to online speech, enabling us to discuss ideas and share perspectives. Given their significant role, the major platforms should facilitate robust debate by erring on the side of preserving the public’s speech. And if they remove protected content, they should offer clarity upfront as to why and, at a minimum, stick to their own rules. Platforms should also offer opportunities for appeals when they inevitably get things wrong. But the government can’t force platforms to carry the speech or promote the viewpoints that it prefers, any more than it could require a bookstore to stock books it did not want to sell.

Ultimately, users should have as much control as possible over what expression they can access. Even if we think the major platforms could be doing a better job, a government-mandated point of view would be a cure worse than the disease.

From affirmative action to classroom censorship, race is a hot topic in our nation’s schools and in the politics of education. Unfortunately, much of the public chatter centers on efforts to restrict how or even if racial discrimination and its legacies can be taught (or explored) in classrooms and libraries. A fundamental fact, often ignored, is that a student’s race has a substantial impact on how the student experiences education, including the opportunities they are likely to be provided or denied.

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Source: American Civil Liberties Union

Nowhere is this more evident than how and when Black students are formally punished. Efforts to undermine nascent school-based efforts to make classrooms more welcoming to Black students have made matters worse, ultimately creating a hostile climate. These attacks on learning about race and racism have made it even more difficult to remedy long-standing patterns of racial bias in those schools.

Today, Black students are more likely to experience all forms of discipline, from being removed from the classroom to being sent to the police. Black students with disabilities are substantially more likely than any other group to experience the most extreme forms of discipline, from losing classroom instructional time due to out-of-school suspension, to being punished through intentional physical pain in the many states where corporal punishment is still legal.

In 2023, the U.S. Education and Justice Departments took several steps to highlight unlawful discrimination they have found when investigating complaints of mistreatment over the last three presidential administrations. The departments concluded that “[D]iscrimination based on race, color, and national origin in student discipline was, and continues to be, a significant concern.” While racial disparities in school discipline do not automatically violate federal laws that ensure fairness, there are many instances in which discrimination underlies these disparities.

Careful inquiry by these federal agencies — by examining student records or other information in school files, interviewing members of school communities, and more — identified six patterns that significantly and negatively impact Black students:

• More frequent punishment for infractions that are subjectively measured — such as disorderly behavior — and for low level infractions, compared to white students.
• Harsher punishment for the same infraction. Consistently, race has been found a factor when Black students are compared to other students who have the same disciplinary records or who committed the same infraction.
• Using exclusionary interventions, such as removal from class or school, on Black students compared to white students who are found to have committed the same infractions.
• A tendency to call the police when Black students are involved, compared to white students.
• Failure by school officials to offer legitimate non-discriminatory reasons for disciplinary actions taken against Black students.
• Poor administration of discipline systems, including providing incorrect data (which often understates the impact on Black students), as well as a tendency to violate proscribed discipline procedures.

It is well established that Black students are not generally more likely to misbehave than other students, even after accounting for different socioeconomic backgrounds. Yet, adults are far more likely to punish Black students, and to punish them severely, when comparing similar conduct of their white peers.

A recent report by the ACLU of North Carolina found that between 2017 and 2023, statewide law enforcement and school staff filed school-based complaints of disorderly conduct against Black students at nearly four times the rate of their white counterparts. The disparity in the rate of referrals for disorderly conduct in schools is even worse for many state counties, where adults refer Black students at a rate of 23 to 42 times more than their white classmates.

Federal officials have highlighted three key guidelines to ensure the nondiscriminatory administration of student discipline.

First, schools must enforce their standards in an evenhanded way. Standards must be legitimate, and not serve as a pretext for engaging in discrimination. Disturbingly, the departments have found instances in which the stated reasons for disciplinary policies or actions were an excuse to treat certain students unfairly, rather than legitimate reasons.

Second, the “duty not to discriminate extends to those who carry out some or all of the schools’ function, including security staff, private security companies, or other contractors, as well as school district police officers or school resource officers.” This requirement is especially significant given the expansion in the number and roles of law enforcement in schools, as well as the increase in student arrests and referrals to law enforcement in the years before the pandemic. Nationwide, student arrests increased 5 percent and referrals to police increased 12 percent in just two years, according to the Department of Education.

Third, schools are generally permitted by federal law — indeed encouraged — to host programming, clubs, and other educational forums that allow children to learn about the history of race in America, the history of their own cultural groups, establish mentoring programs to support students from non-privileged backgrounds, and to organize listening sessions to hear about students’ views on what may contribute to or limit inclusive environments and positive racial climates.

These programs must remain open to all students and not promote hateful or demeaning stereotypes or violence against specific groups of people.

This year’s guidance follows prior federal resources on avoiding discrimination in school discipline and a 2015 White House summit tackling this very issue, underscoring the persistence of this problem.

Alarmingly, some of these earlier federal efforts were scuttled by the Trump/DeVos administration using the false and unsupported claim that discipline reforms aimed at reducing racial discrimination contributed to school shootings. That assertion has been debunked. Moreover, the largest discipline research study ever conducted, which examined the records of about 1 million Texas students, found that while Black students were more likely than other students to be disciplined during middle and high school years, they were less likely to commit offenses where school removal is required by law due to the seriousness of the infractions.

Discriminating against students on the basis of their race does not make schools safer — it makes them more dangerous for Black students, who are more likely to be denied equal educational opportunity because they are pushed out through harsh and inappropriate punishments. These federal resources remind us that our common goal should be to ensure that “all students attend schools where they are supported, safe, and able to access an excellent education. A school environment that is free from discrimination is essential to meeting that goal.”