Florida and Texas should be allowed to regulate how social media platforms moderate content, lawyers for the two states told the Supreme Court on Feb. 26.
During oral arguments, the justices seemed to be grasping for a new rule they could use to apply free speech principles to online discussions.
But there are “a bunch of land mines,” according to Justice Amy Coney Barrett.
“And if that’s a land mine, if what we say about this is that this is speech that’s entitled to First Amendment protection, I do think then that has Section 230 implications for another case, and so it’s always tricky to write an opinion when you know there might be land mines that would affect things later,” she said.
This is the first time that the nation’s highest court has reviewed state laws that deem social media companies “common carriers,” a status that might allow states to impose utility-style regulations on platforms and forbid them from discriminating against users based on their political viewpoints.
Section 230 reads, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The provision generally protects internet service providers and companies from being held liable for what users say on their platforms. Supporters say the provision, sometimes called “the 26 words that created the internet,” has fostered a climate online in which free speech has flourished.
Chief Justice John Roberts suggested during the hearing that governments were ill-suited to regulate rapidly changing technologies.
It would be an “inflection point” for the government to deem the companies common carriers.
“Social media platforms, the internet, all of that stuff is an incredibly dynamic market,” the chief justice said. “The government ... maybe not so much.”
Competing First Amendment Rights
Observers and activists on the left and right are closely watching the cases.At stake is the right of individual Americans to freely express themselves online and the right of social media platforms to make editorial decisions about the content they host. Both rights are protected by the First Amendment to the U.S. Constitution.
Republicans and conservatives were outraged when platforms acted in concert to ban President Donald Trump in January 2021, blocked a potentially election-altering New York Post article about Hunter Biden’s laptop in 2020, and silenced dissenting opinions about the origins of the COVID-19 virus, the treatments for the disease it causes, and the vaccines. They say that social media platforms have become the new town square and that users’ speech therefore enjoys constitutional protection.
Democrats and liberals, on the other hand, claim that the platforms don’t do enough to weed out so-called hate speech and alleged misinformation, which they consider to be pressing social problems.
The challenge to the Florida statute is Moody v. NetChoice LLC; the challenge to the Texas law is NetChoice LLC v. Paxton. On Feb. 26, the justices heard nearly four hours of oral arguments.
The law also establishes restrictions on deplatforming other users and requires consistent application of moderation rules.
The U.S. Court of Appeals for the 11th Circuit halted part of the law and Florida appealed to the Supreme Court.
When signing the law in 2021, Florida Gov. Ron DeSantis, a Republican, said that it ensures that Floridians “are guaranteed protection against the Silicon Valley elites.”
“If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable,” he said at the time.
President Donald Trump filed a brief with the Supreme Court in October 2022 as a private citizen in support of Florida.
“Recent experience has fostered a widespread and growing concern that behemoth social media platforms are using their power to suppress political opposition,” his brief reads.
Ohio, Arizona, Missouri, Texas, and 12 other states argued in a court brief that the internet is the modern-day public square and that social media platforms engaging in censorship “undermine the free exchange of ideas that free speech protections exist to facilitate.”
The 11th Circuit struck down part of the Florida statute, finding that “with minor exceptions, the government can’t tell a private person or entity what to say or how to say it.”
Even the “biggest” platforms are “private actors whose rights the First Amendment protects ... [and] their so-called content-moderation decisions constitute protected exercises of editorial judgment.”
Oral Arguments
Florida Solicitor General Henry Whitaker told the justices during oral arguments that not upholding his state’s law would hurt the ability of online users to discuss issues of public importance.“Internet platforms today control the way millions of Americans communicate with each other and with the world. The platforms achieved that success by marketing themselves as neutral forums for free speech. Now that they host the communications of billions of users, they sing a very different tune,” he said, arguing that they have a broad First Amendment right “to censor anything they host on their sites, even when doing so contradicts their own representations to consumers.”
“But the design of the First Amendment is to prevent the suppression of speech, not to enable it. That is why the telephone company and the delivery service have no First Amendment right to use their services as a choke point to silence those they disfavor.
“The platforms do not have a First Amendment right to apply their censorship policies in an inconsistent manner and to censor and deplatform certain users.”
Justice Brett Kavanaugh said Mr. Whitaker left out how the First Amendment applies only to government action.
“You left out what I understand to be three key words ... ‘By the government,’” the justice said.
NetChoice attorney Paul Clement said Florida’s law is flatly unconstitutional.
“[The state’s] effort to level the playing field and to fight the perceived bias of big tech violates the First Amendment several times over. It interferes with editorial discretion. It compels speech. It discriminates on the basis of content, speaker, and ... viewpoint,” Mr. Clement said.
“And it does all this in the name of promoting free speech but loses sight of the first principle of the First Amendment, which is it only applies to state action.”
Weighing in on behalf of the Biden administration, U.S. Solicitor General Elizabeth Prelogar said the social media platforms may be regulated by governments, but that they “have to stay within the bounds of the First Amendment.”
Content Moderation as ‘Censorship?’
Justice Samuel Alito suggested that content moderation is simply a convenient “euphemism” for “censorship.”He pushed back against Mr. Clement’s contention that the Texas law’s transparency mandates were too onerous for the platforms, saying social media platforms outside the United States have managed to comply with such rules.
Justice Thomas asked Mr. Clement if platform moderation is considered speech when an algorithm is taking action on a post.
Mr. Clement replied in the negative, saying algorithms are designed by people.
But what happens when there is a “deep learning algorithm” that teaches itself, Justice Thomas replied.
Justice Barrett questioned whether the platforms’ moderation policies could be compared to the editorial discretion exercised by newspapers.
She offered a hypothetical example in which TikTok was using an algorithm that favored pro-Palestinian posts over pro-Israel posts.
“If you have an algorithm do it, is it not speech?” the justice asked.
Justice Elena Kagan said platforms allow most posts but still draw the line at some kind of misinformation, bullying, or so-called hate speech.
“Why isn’t that a classic First Amendment violation?” Justice Kagan said.
Justices Alito and Sonia Sotomayor said they were leaning toward vacating the injunction against the Florida law and sending the case back to the 11th Circuit.
Justice Sotomayor noted that she may vote to affirm the injunction while also remanding the case to the circuit court.
She also suggested that the Florida statute was too broadly written and could cover online marketplaces such as Etsy.
“This is so, so broad. It’s covering almost everything,” the justice said. “The one thing I know about the internet is that its variety is infinite.”
Justice Ketanji Brown Jackson questioned why the prohibition in the Florida statute against deplatforming political candidates didn’t qualify as “enforcing anti-discrimination principles?”
Mr. Clement replied that “it doesn’t take much to register in Florida.” The law allows minor candidates to “post anything they want” because they know they can “cause us to fundamentally change our editorial policies.”
Texas Solicitor General Aaron Nielson said the social media platforms cannot be left to their own devices because they favor some speech over other speech.
“This is not the first time that new technology has been used to stifle speech. Telegraphs also discriminated based on viewpoint, prompting ... a national scandal,” he said.
“Yet, under the platforms’ theory, Western Union was just making editorial choices not to transmit pro-union views. Today, millions of Americans don’t visit friends or family or even go to work ... [in] person. Everybody is online. The modern public square.
“Yet, if platforms that passively host the speech of billions of people are themselves the speakers and can discriminate, there will be no public square to speak of.”
