Supreme Court to Weigh Constitutionality of Laws Regulating Social Media Giants

Footage from a Capitol Police security camera that was redirected from the bomb squad response at the Democratic National Committee, in Washington on Jan. 6, 2021.

The Supreme Court is hearing oral arguments on Feb. 26 in two big social media cases that could have wide-reaching implications for how companies like Facebook can moderate or censor content.

Two cases—Moody v. Netchoice and Netchoice v. Paxton—are coming before the court in disputes over Texas’ and Florida’s social media laws. The states’ attempts to rein in big tech laid out many parameters for how companies could remove content they found objectionable.

Netchoice, an organization representing multiple social media companies, has sued alleging that both laws violate the companies’ First Amendment rights. The group has likened their activities to those of a newspaper making editorial decisions about which content to include in publication.

The justices accepted Florida’s appeal (Moody v. NetChoice) and rejected a petition in which NetChoice asked it to consider the entirety of the state law rather than just the portions addressed by the U.S. Court of Appeals for the 11th Circuit. The Supreme Court will consider whether the content-moderation restrictions and individualized explanation requirements violate the Constitution.

Among other things, Texas’ law prohibits censorship based on viewpoint or geographic location, while Florida’s law targets social media companies’ ability to shadowban, de-platform, and censor content. Florida’s law also requires that social media companies provide individualized explanations for removing or altering users’ posts. The 11th Circuit partially affirmed an injunction against Florida’s law, arguing that social media moderation was itself a form of protected speech.

The Texas law was upheld by the U.S. Court of Appeals for the 5th Circuit, which said that the state law comported with how common law historically has treated common carriers. By contrast, the 11th circuit rejected a comparison to common carriers. The court also accused social media platforms of offering a “rather odd inversion of the First Amendment,” in which “buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.”

The court has decided to hear both cases on Feb. 26 in an oral argument that will likely be one of the more widely observed. The issue touches on longstanding tension between users, Republican politicians, and the tech companies they say have a heavy left-wing bias.

Trump Weighs In

Netchoice has argued that “the State of Texas—much like Florida before it—has enacted a viewpoint, content, and speaker-based law ... targeting certain disfavored ’social media‘ websites. [Texas’ law] prohibits these websites from making editorial choices based on ’viewpoint.' And [Texas’ law] imposes on these websites burdensome operational and disclosure requirements, chilling their editorial choices.”

Among the amicus briefs is one from former President Donald Trump, who was banned from X (formerly Twitter), leading him to start his own platform called Truth Social.

In his brief, President Trump defended Florida’s law, saying, “Platforms often shroud decisions to exclude certain users and viewpoints in secrecy, giving no meaningful explanation as to why certain users are excluded while others posting equivalent content are tolerated.”

He added that the law’s provisions “do not compel Platforms to carry or ban any messages; they impose no rules as to what is and is not permissible. They merely ensure that whatever rules the Platforms adopt are fully disclosed and consistently applied.”

The Netchoice cases are two of many to come before the Supreme Court this term and their review indicates interest in the topic from a court that’s acquired a reputation for supporting free speech.

The justices also agreed to hear Murthy v. Missouri, which involves communications in which the Biden administration allegedly coerced social media companies into censoring content related to COVID-19.