The Supreme Court will hear arguments Monday in a pair of cases that could fundamentally change conversation on the Internet by defining for the first time what rights social media companies have to control what their users post.
The court's decision, expected by June, will be the most important statement about the scope of the First Amendment in the Internet era, and will have major political and economic implications. A ruling that tech platforms like Facebook, YouTube and TikTok do not have editorial discretion to decide what posts to allow will expose users to a range of viewpoints, but will certainly amplify the ugly aspects of the digital age, including hate speech and misinformation.
That, in turn, could be a blow to the business models of platforms that rely on curation to attract users and advertisers.
Supporters of the laws said the laws were an effort to combat so-called Silicon Valley censorship, whereby large social media companies have removed posts expressing conservative views. On January 6, 2021, after the attack on the Capitol, President Donald J. The laws were prompted in part by some sites' decisions to ban Trump.
Florida and Texas laws differ in their details. Florida prohibits sites from removing any content based on a user's viewpoint, while Texas prohibits sites from permanently blocking candidates for political office.
“To generalize a bit” Judge Andrew S. Oldham wrote A decision establishing Texas lawFlorida law “prohibits All Censorship Some Speakers,” a “ban from Texas Some Censorship All Speakers” based on the ideas they express.
Two trade associations challenging the state laws — NetChoice and the Computer & Communications Industry Association — said the actions Judge Oldham called censorship constituted editorial choices that are generally protected by the First Amendment, which prohibits government restrictions on speech based on content and viewpoint.
The groups said social media companies are entitled to the same constitutional protections that newspapers enjoy, and that they are generally free to publish what they want without government interference.
States responded that websites were common carriers for everyone's messages, and that laws protected free speech by ensuring that users had access to multiple viewpoints.
Federal appeals courts in 2022 made conflicting decisions on the constitutionality of the two laws.
A unanimous three-judge panel of the United States Court of Appeals for the 11th Circuit Largely established Preliminary Injunction Restraining Florida Law.
“Social Media Sites Inherently Express Editorial Judgment” Judge Kevin C. Newsom Wrote to the group. “When sites choose to remove users or posts, prioritize content in visitors' feeds or search results, or permit violations of their community standards, they engage in First Amendment-protected activity.”
But a three-judge panel of the Fifth Circuit was divided The lower court reversed the order Blocking Texas law.
“We reject the sites' attempt to sever independent censorship from the Constitution's guarantee of free speech,” Justice Oldham wrote for the majority. “Platforms are not newspapers. Their censorship is not speech.
The Biden administration supports social media companies in both cases, Moody v. Net ChoiceNo. 22-277, et seq NetChoice v. PaxtonNo. 22-555.
The Supreme Court blocked the Texas law in 2022, while the case moved forward by a 5-to-4 vote. An unusual alliance in discontent. The three most conservative members of the court—Justices Samuel A. Alito Jr., Clarence Thomas, and Neil M. Gorsuch – filed a rebuttal asking that they allow the law to take effect. Liberal Justice Elena Kagan also dissented, but she did not join the dissent and did not give her reasons.
Justice Alito wrote that the issues were so novel and significant that the Supreme Court should consider them at some point. He said he's skeptical of the argument that social media companies have the same First Amendment-protected editorial discretion as newspapers and other traditional publishers.
“It is unclear how our current paradigms from the pre-Internet age apply to large social media companies,” he wrote.
