The U.S. Supreme Court recently grappled with two pivotal cases that could shape the future of the Internet and First Amendment rights. These cases revolve around whether states like Florida and Texas can compel major social media platforms to host content they find objectionable or hateful. Legal experts consider these the most significant First Amendment cases in a generation.
Chief Justice John Roberts questioned whether the state should regulate what he termed the “modern public square.” He and other justices seemed to lean towards the argument that government officials cannot force individuals or businesses, including social media giants, to speak. Matt Schruers, president of the Computer & Communications Industry Association, argued that government dictation of viewpoints in the name of free expression is fundamentally Orwellian.
The backdrop to these cases includes the aftermath of the 2021 U.S. Capitol siege, which led major social media platforms to ban former President Donald Trump, fearing his posts could incite further violence. In response, Republicans in Florida and Texas enacted laws preventing large platforms from banning users based on political viewpoints and requiring explanations for content removal. Texas Governor Greg Abbott declared that freedom of speech was under attack, accusing social media companies of silencing conservative ideas.
The social media companies sued, arguing that these state laws interfere with their operations, from basic policies to content moderation. Schruers emphasized the necessity of guidelines to maintain community standards, citing examples ranging from inappropriate forum posts to more severe issues like child grooming.
Attorney Paul Clement, representing the social media platforms, argued that the state laws would cause massive disruptions, potentially leading platforms to host only benign content like puppy videos for users in Florida. Lawyers for Texas and Florida countered that social media platforms discriminate against conservative views and should not engage in censorship.
John Whitehead of the Rutherford Institute argued that social media sites, as central to people’s lives, should not censor content but rather encourage debate. Florida Solicitor General Henry Whitaker contended that platforms do not have a First Amendment right to apply censorship policies inconsistently.
Carl Szabo of NetChoice, another trade group involved in the lawsuits, stated that these cases will define the future of the Internet, emphasizing the importance of opposing government control of speech. The justices must decide whether social media platforms are akin to old-time phone companies, open to all without filtering, or more like bookstores and newspapers, which curate content and receive high First Amendment protection.
The social media giants rely partly on a 1974 Supreme Court case, Miami Herald v. Tornillo, where Florida tried to force a newspaper to publish op-eds it didn’t want. The high court sided with the newspaper, and today, social media sites argue that Florida is attempting to make them publish every letter to the editor, which neither users nor advertisers want.
Justice Samuel Alito noted that modern social media doesn’t fit neatly into existing categories, while Solicitor General Elizabeth Prelogar advised the justices to rule narrowly, focusing on the largest social media sites and leaving broader issues for another day.
Support for the tech companies comes from a wide range of groups, including the U.S. Chamber of Commerce, Americans For Prosperity, and the American Civil Liberties Union. National security experts also weighed in, highlighting the role of content moderation in preventing hate and violence online.
Rupa Bhattacharyya, a former Justice Department lawyer, argued that social media platforms should face common-sense regulations but warned that the state laws would lead to no content moderation at all. Volunteer moderators of a Reddit site devoted to law and the Supreme Court also filed a brief, emphasizing that the state laws would commandeer someone else’s microphone to spread a message.
The Supreme Court’s decision will hinge on whether social media platforms are exercising editorial control, akin to newspapers, or merely hosting speech. Justices like Brett Kavanaugh and Amy Coney Barrett seemed to lean towards the former, while Justice Clarence Thomas and Samuel Alito appeared more inclined to uphold the state laws.
The justices expressed uncertainty about how to proceed, especially with the broad scope of the Florida law, which could apply to various platforms beyond social media. They debated whether to strike down the laws entirely or take a narrower approach, focusing on the largest platforms.
In the Texas case, the justices also discussed the interaction between the Texas law and Section 230 of the Communications Decency Act, which shields tech companies from liability for user-generated content. Justice Neil Gorsuch noted a tension between the idea that tech companies can’t be held liable for user speech and the notion that moderating content is the company’s speech.
A decision is expected by summer, and it will have far-reaching implications for the regulation of social media and the protection of free speech online.
Source: NPR, SCOTUSblog
