Takeaways from the Supreme Court’s arguments on social media laws

The Supreme Court heard nearly four hours of arguments Monday on a pair of First Amendment cases challenging laws in Florida and Texas that aim to limit the ability of internet companies to moderate content on their platforms. Here are some takeaways:

The cases could shape the future of internet discourse.

As the public domain has moved online in the 21st century and technology companies like Facebook, YouTube, and

Florida and Texas have passed laws limiting the ability of major internet companies to control what appears on their platforms, partly in response to what some conservatives saw as censorship of right-wing views by Silicon Valley in the name of combating hate speech and disinformation. One of the most notable examples: the decisions by some platforms to ban President Donald J. Trump after he repeatedly posted on social media to falsely claim that his loss in the 2020 election was the result of fraud, leading to the elections of January 6, 2021. , Capitol riot.

An association of tech companies called NetChoice has filed a lawsuit arguing that platforms have the right to moderate the content on their sites — a practice it says is crucial to keeping them attractive to users and advertisers. The coalition has obtained preliminary injunctions blocking both states from enforcing the laws while broader First Amendment issues are litigated.

The court can refer the cases back.

Both liberal and conservative justices indicated they would prefer a more developed record on how the law would work, raising the possibility that the Supreme Court could send the case back to lower courts for more fact-finding.

Justice Samuel A. Alito Jr., a conservative, pointed out that there were no lists of which platforms were covered by the Florida statute or of all the functions those services perform. He raised the possibility of sending the case back for more discussion at lower court levels on issues such as whether and how the law applies to other tech services, such as direct messaging and email. Justice Sonia Sotomayor, a liberal, indicated she was inclined to do the same.

Both parties claim the mantle of freedom of expression.

Attorneys general for Florida and Texas defended their states’ laws, arguing that major internet companies that operate social media platforms that are essentially public forums cannot discriminate based on political views. They portrayed content moderation as censorship.

Paul Clement, a lawyer for NetChoice, argued that “censorship” was the wrong word if it wasn’t the government acting and that the companies were instead exercising “editorial judgment.” He claimed that it was unconstitutional under the First Amendment to force the companies to publish their views against their will.

Are social media like a newspaper? A phone?

The discussion repeatedly referred to precedents involving older technologies as a starting point for how to think about the platforms. Henry Whitaker, Florida’s attorney general, argued that social media platforms should be viewed as “common carriers” like phone companies because they transmit communications from their subscribers — and thus should not discriminate between users based on their opinions. But Mr. Clement argued that they are just like newspapers, citing a 1974 case that struck down a Florida law that required newspapers to give equal space to political candidates who wanted to respond to editorials or endorsements.

The scope of the laws, especially Florida’s, is a complication.

Several justices expressed discomfort that the case reached the Supreme Court as a so-called facial challenge, meaning prosecutors said the law is unconstitutional in the abstract and should be struck down in its entirety. Another way to challenge a law is to say that it is unconstitutional if it is applied to certain categories of activities, while otherwise remaining in force.

Both liberal and conservative justices suggested that the Florida law, which is more broadly written than the Texas law, appears to have broader applications that do not qualify as what is known as expressive conduct and therefore fall outside the First Amendment’s protection of free liberty . speech. For example, they suggested that Florida law would also regulate companies like Uber or Etsy that don’t publish content.

A ruling could come later this spring.

Although the Supreme Court sometimes acts quickly, in this case it will likely take more time. The specific question before the justices is whether to lift preliminary injunctions from lower courts that have blocked Florida and Texas from enforcing their laws as First Amendment lawsuits play out.

But the line between that procedural question and its merits is blurred: The standard for assessing such an order includes assessing whether the party seeking it – in this case, the tech companies – is likely to prevail. As a result, what the Supreme Court says about the order could have a major impact on the outcome of the overall lawsuit.