Justices hear challenge to states’ social media laws
Court seems wary of limits regarding how firms use own sites
WASHINGTON — The Supreme Court seemed skeptical Monday of laws in Florida and Texas that bar major social media companies from making editorial judgments about which messages to allow.
The laws were enacted in an effort to shield conservative voices on the sites, but the court’s decision, expected by June, will almost certainly be its most important statement on the scope of the First Amendment in the internet era, with broad political and economic implications.
A ruling that tech platforms have no editorial discretion to decide what posts to allow would expose users to a greater variety of viewpoints but almost certainly amplify the ugliest aspects of the digital age, including hate speech and disinformation.
A ruling in favor of big platforms like Facebook and YouTube seemed likely, but the court also seemed poised to return the cases to the lower courts to answer questions about how the laws apply to sites like Gmail, Venmo, Uber and Etsy that may not moderate their users’ speech in the same way.
The justices differed about whether the laws, which have been blocked for now, should go into effect in the meantime.
But a majority seemed inclined to keep them on hold while the litigation moves forward.
Several justices said that states violated the First Amendment by telling a handful of major platforms that they could not moderate their users’ posts, drawing distinctions between government censorship prohibited by the First Amendment and actions by private companies to determine what speech to include on their sites.
“I have a problem with laws that are so broad that they stifle speech just on their face,” Justice Sonia Sotomayor said.
Justice Brett Kavanaugh read a sentence from a 1976 campaign finance decision that has long been a touchstone for him.
“The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment,” he said, indicating that he rejected the states’ argument that they may regulate the fairness of public debate in private settings.
“I wonder,” Chief Justice John Roberts said, “since we’re talking about the First Amendment, whether our first concern should be with the state regulating what we have called the modern public square.”
The laws’ supporters said they were an attempt to combat what they called Silicon Valley censorship, through which major social media companies had deleted posts expressing conservative views. The laws were prompted in part by the decisions of some platforms to bar President Donald Trump after the Jan. 6, 2021, attack on the Capitol.
The laws, from Florida and Texas, differ in their details. Florida’s prevents the platforms from permanently barring candidates for political office in the state while Texas’ prohibits the platforms from removing any content based on a user’s viewpoint.
“To generalize just a bit,” Judge Andrew Oldham wrote in a decision upholding the Texas law, the Florida law “prohibits all censorship of some speakers,” while the one from Texas “prohibits some censorship of all speakers” when based on the views they express.
The two trade associations challenging the state laws — NetChoice and the Computer & Communications Industry Association — said the actions Oldham called censorship were editorial choices protected by the First Amendment, which generally prohibits government restrictions on speech based on content and viewpoint. The groups said social media companies were entitled to the same constitutional protections enjoyed by newspapers, which are generally free to publish what they like without government interference.
The states responded that internet platforms were common carriers required to transmit everyone’s messages and that the laws protected free speech by ensuring that users have access to many points of view.
Federal appeals courts reached conflicting conclusions in 2022 about the constitutionality of the two laws. A unanimous threejudge panel of the 11th U.S. Circuit Court of Appeals largely upheld a preliminary injunction blocking Florida’s law.
But a divided three-judge panel of the 5th U.S. Circuit Court of Appeals reversed a lower court’s order blocking the Texas law.
The Biden administration supports the social media companies in the two cases, Moody v. NetChoice, No. 22-277, and NetChoice v. Paxton, No. 22-555.