What Ketanji Brown Jackson’s Confirmation Means for Tech Policy

COMMENTARY

Hidden between the Republican political grandstanding and baseless attacks, soon-to-be Justice Ketanji Brown Jackson previewed her views on a crucial online speech protection at the recent Supreme Court confirmation hearings.

Anyone who wants online platforms to moderate and take down harmful online content should breathe a sigh of relief, especially in light of pending federal court challenges to social media laws in Florida and Texas.

During the hearings, Sen. Mike Lee, R-Utah, asked Judge Jackson about the constitutionality of forcing online platforms to not discriminate against particular viewpoints. While prohibiting discrimination against “viewpoints” might sound good at first blush, it’s important to understand the context in which Lee asked the question.

Far-right lawmakers in states from Florida to Texas are currently pushing anti-content moderation legislation that would stop social media companies from taking down vaccine misinformation, hate speech, and posts from violent insurrectionists.

Effectively, these laws would force social media companies to leave up harmful posts — including what Lee referred to as “viewpoints” — even if a post violates community standards.

But when Judge Jackson was put on the spot by Lee, she offered a succinct and measured response, perfectly summing up the government’s role in content moderation and speech hosted by private companies.

“It would be relevant, I think, as to whether or not the government is seeking to regulate along viewpoint lines. Under the First Amendment that is something that is generally impermissible.”

In short, despite the best efforts of right-wing lawmakers in Texas, Florida and Georgia, every online platform — from leading players like Facebook to niche online comment forums — have a First Amendment right to moderate their sites. They can ban vaccine misinformation or anti-LGBTQ rhetoric, and enforce their terms of service without worrying about being sued for doing so.

It’s a right that’s been confirmed time and again in federal courts. After Florida passed a law that would prohibit social media platforms from taking down misinformation, a federal district court struck the law down for violating the First Amendment. Six months later, a federal court in Texas did the same, striking down a new law in the Lone Star State that would have prevented social media sites from moderating content on their own platforms.

While social media platforms’ First Amendment protections might seem settled, a radical Supreme Court justice could still have the power to upend the right of these platforms to take down harmful content.

Unfortunately, the incorrect belief that online platforms must host every QAnon conspiracy and Russian disinformation plot has already made its way all the way to the Supreme Court bench. Supreme Court Justice Clarence Thomas made it clear in March that he’d like to see the court slash Section 230 protections and weaken laws protecting online platform moderation decisions.

Thankfully, Judge Jackson’s recent statements at her confirmation hearing indicate that the Supreme Court’s newest addition will uphold the law as it stands and protect the First Amendment right of social media companies to take down harmful content.

The truth is, there’s a lot of harmful content online that social media companies need to watch out for to keep their platforms safe. Twitter has employed artificial intelligence to proactively block and remove terrorist propaganda from its site. Google shared last month that it used similar algorithms to block or remove over 95 million fraudulent or inaccurate business reviews that violated its policies. And Meta disabled Facebook accounts spreading false information about COVID-19 linked to the Chinese government.

Reversing federal courts’ current interpretation of First Amendment protections for content moderation would disincentivize companies from making their platforms as safe and disinformation-free as possible.

Judge Jackson understands this, and for this and countless other reasons, we should celebrate her historic confirmation to the court.

Adam Kovacevich is CEO and founder of the Chamber of Progress, a new center-left tech industry policy coalition promoting technology’s progressive future. Chamber of Progress corporate partners include Amazon, Apple, Google and Facebook. You can reach the Chamber of Progress here and follow Adam on Twitter @adamkovac.