Social Media's Free Speech Fight: Are Analogies Failing Us?

Mira Elwood in Law & Justice August 2025 • 4 min read.

"Navigating the complex legal battles over social media regulation requires a fresh look beyond outdated comparisons."

The Supreme Court is facing a wave of cases that challenge the very nature of our relationship with technology, particularly social media. These cases grapple with fundamental questions: How do we maintain a vibrant public square when a handful of tech giants control the flow of information? How do we balance free speech with the need to combat harmful disinformation? And how can government and industry work together without crossing the line into censorship?

In the search for answers, lawyers and courts often turn to analogy, drawing parallels between new technologies and familiar concepts. But what if social media is fundamentally different from anything that came before? This article explores that question, focusing on recent laws in Texas and Florida that aim to regulate social media platforms in the name of free speech. It argues that social media's unique characteristics make it a poor fit for analysis by analogy and calls for a shift towards legal doctrines tailored to address its specific challenges.

We must tread carefully when applying old legal frameworks to new technologies. While it's tempting to draw lessons from how the law has dealt with the printing press, the telegraph, or broadcast media, social media presents a unique set of problems that demand fresh thinking. If we fail to recognize these differences, we risk doing more harm than good.

The Social Media Minefield: A Battleground of Accusations

Digital illustration balancing law books and smartphones, symbolizing the challenge of regulating social media.

Social media has become a hotbed of conflicting viewpoints, with accusations flying from all sides. Some claim that liberals control American news, while others argue that conservatives are driving a dangerous agenda. Concerns about censorship and the spread of misinformation are rampant, fueling public debate and raising the stakes for the future of online speech.

There are growing concerns on the left that the spread of misleading and hateful content online threatens public health, well-being, and even democracy itself. In response to the COVID-19 pandemic and the 2020 election, some states have considered or enacted laws aimed at curbing the spread of harmful information.

Washington State: Considered a measure that would have criminalized false election-related speech.
California and New York: Adopted laws requiring social media companies to submit regular reports on their content moderation strategies.

On the other side of the spectrum, many believe that efforts to control online speech will stifle the voices of ordinary Americans and infringe upon their fundamental right to express themselves. They view free expression as a crucial safeguard against government overreach and the concentration of power. This perspective has driven states like Florida and Texas to enact laws protecting free speech on social media platforms.

A Call for Fresh Thinking

The challenges to the Florida and Texas laws are just the beginning. With numerous social media cases on the horizon, the Supreme Court faces the daunting task of navigating this complex landscape. Judges must resist the urge to rely solely on old distinctions and analogies. Online platforms represent a new generation of technology that demands fresh consideration and innovative legal tools. The future of free speech in the digital age depends on it.

About this Article -

This article was crafted using a human-AI hybrid and collaborative approach. AI assisted our team with initial drafting, research insights, identifying key questions, and image generation. Our human editors guided topic selection, defined the angle, structured the content, ensured factual accuracy and relevance, refined the tone, and conducted thorough editing to deliver helpful, high-quality information.See our About page for more information.

This article is based on research published under:

DOI-LINK: https://doi.org/10.48550/arXiv.2404.02273,

Title: Beyond Social Media Analogues

Subject: econ.gn q-fin.ec

Authors: Gregory M. Dickinson

Published: 02-04-2024

Everything You Need To Know

What are the core questions the Supreme Court is grappling with in relation to social media?

The Supreme Court is facing critical questions about how to maintain a vibrant public square given the control of information by tech giants, balancing free speech with the need to combat harmful disinformation, and the collaboration between government and industry without crossing into censorship. These questions are central to the ongoing legal battles surrounding social media regulation and the future of free speech in the digital age.

Why is the use of analogies from older technologies, such as the printing press or broadcast media, considered problematic when applied to social media?

The article argues that applying analogies from older technologies like the printing press, telegraph, or broadcast media to social media is problematic because social media possesses unique characteristics that set it apart. Social media presents a new set of problems demanding fresh consideration and innovative legal tools, making direct comparisons to these older technologies inadequate. This is particularly true in the context of laws enacted in places like Florida and Texas.

How do different states approach the regulation of social media platforms?

States have adopted varied approaches to social media regulation, driven by differing viewpoints. Some states, such as Washington, considered measures to criminalize false election-related speech. Others, including California and New York, have focused on requiring social media companies to report on their content moderation strategies. Conversely, states like Florida and Texas have enacted laws with the goal of protecting free speech on social media platforms, reflecting the view that efforts to control online speech might stifle expression.

What are some of the specific concerns raised by those who believe social media platforms are censoring content or spreading misinformation?

Concerns on the left include that the spread of misleading and hateful content online threatens public health, well-being, and even democracy itself. This concern has led to calls for regulation to curb the spread of harmful information, particularly in response to events like the COVID-19 pandemic and the 2020 election. The debate also includes the perspective of those who believe that efforts to control online speech will stifle the voices of ordinary Americans.

What are the implications if the legal system fails to adapt to the unique characteristics of social media?

If the legal system fails to recognize the unique challenges presented by social media and relies solely on outdated analogies, there is a risk of doing more harm than good. The future of free speech in the digital age depends on the Supreme Court's ability to resist the urge to rely solely on old distinctions and analogies and instead develop innovative legal tools. Failing to do so could lead to unintended consequences that may stifle free expression or fail to address the complex issues surrounding misinformation and censorship on platforms like those in Texas and Florida.