SCOTUS and Social Media Laws

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The Supreme Court on Monday grappled with knotty free speech questions as it weighed laws in Florida and Texas that seek to impose restrictions on the ability of social media companies to moderate content.

After almost four hours of oral arguments, a majority of the justices appeared skeptical that states can prohibit platforms from barring or limiting the reach of some problematic users without violating the free speech rights of the companies.

But justices from across the ideological spectrum raised fears about the power and influence of big social media platforms like YouTube and Facebook and questioned whether the laws should be blocked entirely.

Trade groups NetChoice and the Computer and Communications Industry Association, known as CCIA, say that both laws infringe upon the free speech rights of companies under the Constitution’s First Amendment by restricting their ability to choose what content they wish to publish on their platforms.

First Amendment free speech protections apply to government actions, not those by private entities, including companies.

"Why isn't that, you know, a classic First Amendment violation for the state to come in and say, 'We're not going to allow you to enforce those sorts of restrictions'?" asked liberal Justice Elena Kagan, in reference to the Florida law's content moderation provisions.

As Chief Justice John Roberts put it, because the companies are not bound by the First Amendment, "they can discriminate against particular groups that they don't like."

Some justices, however, suggested the laws might have some legitimate applications against other platforms or services, including messaging applications, which could mean the court stops short of striking them down.

The eventual ruling could lead to further litigation in lower courts as to whether the laws should be blocked. Both are currently on hold.

"Separating the wheat from the chaff here is pretty difficult," said conservative Justice Neil Gorsuch.

Fellow conservatives Clarence Thomas and Samuel Alito seemed most sympathetic to the states.

Alito at one point appeared openly mocking of the concept of content moderation.

"Is it anything more than a euphemism for censorship?" he asked.

The laws were enacted by the Republican-led states in 2021 after Twitter, Facebook and others banned former President Donald Trump after his effort to overturn the 2020 presidential election ended in his supporters storming the U.S. Capitol on Jan. 6, 2021.

Both laws seek to impose restrictions on content moderation and require companies to provide individualized explanations to users when content is removed.

The Florida law among other things prevents companies from banning public figures running for political office and restricts “shadow banning,” whereby certain user content is made difficult to find by other users. The state claims that such actions are a form of censorship.

The Texas law similarly prevents platforms from banning users based on the views they express. Each law requires the companies to disclose their moderation policies.