On the one hand, the Fifth Circuit has ruled that social media are more akin to common carriers than traditional media companies, and that using editorial discretion is “censorship,” which has no protection in Section 230 or the First Amendment. On the other hand, the Supreme Court has decided to hear a case in which the plaintiffs argue that the use of algorithms is not protected by Section 230, so the social media companies can be held liable for some third-party postings. In a very narrow sense, given the emphasis on algorithms in the second case, the two arguments are not mutually exclusive, but in a broader sense, they clearly are. Both threaten the current business models of the social media companies: the first is consistent with arguments about censorship typically made by the right; and the second with the position of the left, which worries about the dissemination of extreme right-wing lies.
The partisan divide in Congress as to what exactly is the problem presented by social media makes legislation unlikely. The judiciary, however, may do the job instead. These cases bear close watching.