ORTNER: Meta’s Free Speech Makeover And The Fight For Digital Free Speech

Two weeks ago, Meta CEO Mark Zuckerberg announced changes to Facebook and Instagram’s content moderation policies in order to return these platforms to their “roots around free expression.” Meta will eliminate restrictions on debate around controversial topics like immigration and gender identity, dramatically reduce the use of automatic moderation, and replace fact-checkers with Community Notes. 

These are mostly welcome changes for all who value free speech and a robust exchange of ideas. Indeed, they closely align with recommendations championed by free speech organizations like the Foundation for Individual Rights and Expression, where I work. These changes, along with several others, should put an end to the idea that government regulation is needed to eliminate social media bias.

Over the last few years, I’ve spoken to Federalist Society student chapters across the country, arguing that protecting free speech on social media is essential to preserving the digital marketplace of ideas. Although I’ve generally found these law students to be sympathetic to and appreciative of my message, some have raised concerns about anti-conservative bias on social media platforms and called for more aggressive regulation to combat such bias.

Unfortunately, this pro-regulation mentality had gained traction in several red states, including Florida and Texas.  These states enacted laws that severely curtailed the freedom of social media platforms by forcing them to adopt a position of viewpoint neutrality. This meant platforms had to treat all speech equally, even if that speech was incompatible with the platform’s values.

This regulatory approach appeared ascendant a few years ago, but several significant developments have revealed how flawed that position was.

First, we witnessed the emergence of significant conservative alternatives, such as Rumble, which arose as a conservative competitor to YouTube, and Truth Social. At the same time, Elon Musk purchased Twitter in 2022 and dramatically changed its free speech policies (though with a somewhat mixed record for speech on the platform). All of this proved that social media platforms could make drastic changes in response to feedback or pressure from users and that the existing platforms did not have a monopoly over the marketplace of ideas and were vulnerable to competition. Facebook’s actions are the latest example of this trend of platforms being willing to make significant changes without the need for government regulation. 

Second, the Supreme Court forcefully declared that Florida and Texas’s effort to control the editorial judgments of social media platforms was likely unconstitutional. In Moody v. NetChoice, the Supreme Court emphasizes that governments cannot interfere with “platforms’ choices about the views they will, and will not, convey.” Nor can a state try to “tilt public debate” in order “to achieve its own conception of free speech nirvana.” Simply put, there is no social media exception to the First Amendment. Although the Supreme Court did not conclusively resolve every question, it is clear that government efforts to force platforms to include or exclude content would run up against the protections of the First Amendment.

Third, in the last few years, it has become clear that the government itself poses the greatest threat to free speech rights on social media. In particular, increasing evidence emerged regarding government efforts to jawbone and pressure social media companies, especially regarding speech over the COVID-19 pandemic. Other states attempted to regulate speech they didn’t like by labeling it “hate speech” We had to ask ourselves, why would we trust these same government officials to oversee social media platforms and decide whether their own policies were unbiased?

Finally, the danger of overseas regulations of social media platforms became increasingly apparent, such as the European Union’s adoption of the Digital Services Act, which requires platforms to take down “hateful” content. Efforts to regulate social media platforms at home give oxygen to regulations by nations far less friendly to free speech than the United States. Indeed, as Zuckerberg explained in his video, efforts to regulate social media platforms at home have “emboldened other governments to go even further.” Additionally, as numerous civil rights organizations recently told the Supreme Court, supporting social media regulation “would weaken the nation’s moral authority to advocate for speech and press freedoms abroad.” 

After all, it is very difficult for the United States to stand up for free speech when it is itself interfering with that very freedom.

In light of these trends, those who champion free speech should reject efforts to use government force to regulate social media platforms. These platforms may be imperfect, but they have created remarkable spaces for freedom of thought and human flourishing. Robust competition and vigorous user advocacy are far more effective than empowering government bureaucrats to control these platforms. As other countries increasingly crack down, we must take a stand in defense of free speech on the internet and reject the impulse to regulate the marketplace of ideas.

Daniel Ortner is an attorney at the Foundation for Individual Rights and Expression