CALL REPLAY | LEGAL AND REGULATORY CHALLENGES FOR SOCIAL MEDIA

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• Overview | What Pressures Will Social Media Companies Face on the Regulatory and Legal Side?

• Two years into the Biden Administration, divided Congress now; if they are going to get something done it’s going to happen through the regulatory process subject to judicial review
• Social media has a big target on its back –> becoming a primary way that people get their news; impacts on elections, etc.
• This is a big term on social media in the Supreme Court
• A number of conservative justices have raised concerns on the power of social media
• Big case coming up in February on Section 230: digital platforms may lose liability protection for platform-recommended content, threatening a critical user engagement tool.
• Political censorship cases also getting a lot of attention
• Republican legislatures have pushed through laws that would prohibit social media platforms from censoring political viewpoints; platforms are very concerned about this
• Could create chaos on the platforms, discouraging companies from advertising on them
• Supreme Court is seeking DOJ input, likely delaying full review on the merits until late this year with a decision in 2024, a few months before the Presidential election
• Policy squeeze on social media: risk to social media's autonomy to optimize how they offer their products and services, and risk to how they monetize user engagement
• FTC likely proposes regulations that would limit how companies monetize user engagement by restricting the use of personal data for targeted ads
• The Biden Administration supports major restrictions on targeted advertising

• Q: Is this divided Congress going to be involved in reining in social media? Will there be any collaboration between the two sides?

• There is a reasonable shot that there could be collaboration
• Bipartisan support for reforming Section 230
• Republicans concerned whether or not social media companies discriminate against conservative viewpoints
• Democrats have been responsive to concerns about harmful content, cyberbullying, etc.
• Jim Jordan is the new Judiciary Committee Chairman in the House; heading a select committee that is studying the weaponization of social media by the federal government

• Q: The Section 230 liability shield and the First Amendment cases are high in the Supreme Court agenda. Is the Court dealing with any other cases that could impact social media platforms?

• There is one other case –> Twitter v. Taamneh
• This case also involves terrorism, nightclub shooting in Istanbul
• The argument is that ISIS content was not aggressively taken off the platform, Twitter could have done more to prevent this type of content from being made available
• Not so much a Section 230 case, but more so how you interpret a potential liability for social media under the Antiterrorism Act

• Q: If you got to be a Supreme Court Justice for a day, what would your rulings be in the best interests of free markets, economic recovery, and personal privacy?

• These platforms should have the freedom to operate as they operate as private actors
• Use Section 230 as a way of protecting them as long as they don’t engage in particular policies of favoritism toward particular actors
• First Amendment is flexible and always has been
• Have to come to terms with the power and influence of social media