Social media laws face Supreme Court scrutiny
What happened
Both conservative and liberal justices this week expressed skepticism about two state laws regulating social media in a pair of cases that could transform how the First Amendment applies to online communication. During arguments in Moody v. NetChoice and Net Choic ev. Paxton, they asked whether laws passed in Florida and Texas in 2021 would require unconstitutional government compelled speech. Florida’ s Stop Social Media Censorship Act prohibits platforms from banning political candidates or “journalistic enterprises,” while Texas’ H.B. 20 bars them from blocking or otherwise penalizing content based on its viewpoint. Attorneys for the Republican-led states argued the laws are designed to prevent censorship by social media companies. Chief Justice John Roberts countered that what private companies choose to limit is not a First Amendment concern. “What the government’s doing here is saying, ‘You must do this, you must carry these people.’” he said. “That’s not the First Amendment.”
Most of the justices, however, appeared wary of striking down the laws entirely, as lawyers for NetChoice — a trade group that includes Meta, Google, and TikTok — sought. Though lower-court injunctions have halted enforcement, they are broad enough to cover tech companies with less clear-cut First Amendment interests. Florida’s law, Justice Amy Coney Barrett said, “looks to me like it could cover Uber. It looks to me like it could cover Google’s search engine.” The justices may leave it to lower courts to determine the laws’ true scope; a decision is expected by late June.
What the columnists said
Though social media companies’ censorship “tilts against conservatives,” that still doesn’t justify government coercion, said The Wall Street Journal in an editorial. Texas’ and Florida’s lawyers argued that these platforms act like a “common carrier” such as a telephone company. But they are more like a newspaper, exercising editorial judgment and curating content to keep advertisers from fleeing. The Texas law especially is so sweeping, “it could be read to bar platforms from suppressing pro-Nazi speech.”
Don’t compare the social media platforms to newspapers, said Tim Wu in The New York Times. They hold themselves out “as a place for anyone to connect with the world,” then turn around and seek “a kind of immunity verging on sovereignty” with potentially dire consequences. They want to “hijack the concept of free speech and make it into their own broad cloak of protection” that would hobble our ability to regulate everything from data privacy to AI-generated content.
The justices are clearly bothered by these “incompetently drafted” laws, said Ian Millhiser in Vox. They are so broadly drawn that it’s hard to identify which parts, if any, could be constitutional. The Supreme Court could send this back to lower courts to work that out—though Barrett suggested “the court could write an opinion that states explicitly that many of the law’s applications are unconstitutional.” If any part of the laws stands, it means a bonanza for lawyers, and confusion for everyone else. “What a mess.”