Supreme Court takes up free speech challenge against social media laws

The Supreme Court will hear arguments Monday in a number of cases that could fundamentally change the discourse on the Internet by defining for the first time what rights social media companies have to limit what their users can post.

The court’s decision, expected in June, will almost certainly be the most significant statement on the scope of the First Amendment in the Internet age, and will have major political and economic implications. A ruling that tech platforms like Facebook, YouTube and TikTok have no editorial discretion to decide which posts to allow would expose users to a greater variety of viewpoints, but almost certainly amplify the ugliest aspects of the digital age, including hate speech and disinformation .

That, in turn, could deal a blow to the platforms’ business models, which rely on curation to attract users and advertisers.

The laws’ supporters said they were an effort to combat so-called censorship in Silicon Valley, which has seen major social media companies remove posts expressing conservative views. The laws were prompted in part by some platforms’ decisions to ban President Donald J. Trump following the Jan. 6, 2021, attack on the Capitol.

Florida and Texas laws differ in details. Florida bans the platforms from removing content based on a user’s point of view, while Texas prevents the platforms from permanently banning candidates for political office in the state.

“To generalize for a moment,” Judge Andrew S. Oldham wrote in it a decision to enforce Texas law“Florida law prohibits this all censorship of some loudspeakers,” while the one from Texas “bans some censorship of all speakers” when based on the views they express.

The two trade associations challenging the state laws — NetChoice and the Computer & Communications Industry Association — said the actions that Judge Oldham called censorship were editorial choices protected by the First Amendment, which generally prohibits government restrictions on speech based on content and position.

The groups said social media companies were entitled to the same constitutional protections enjoyed by newspapers, which are generally free to publish whatever they want without government interference.

The states responded that internet platforms were common carriers needed to transmit everyone’s messages and that the laws protected freedom of expression by ensuring users have access to many points of view.

Federal appeals courts reached conflicting conclusions in 2022 about the constitutionality of the two laws.

A unanimous three-judge panel of the United States Court of Appeals for the 11th Circuit largely defended a preliminary injunction blocking Florida law.

“Social media platforms exercise editorial judgment that is inherently expressive,” Judge Kevin C. Newsom wrote for the panel. “When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or penalize violations of their community standards, they are engaging in First Amendment-protected activity.”

But a divided three-judge panel of the Fifth Circuit overturned a lower court’s order blocking the Texas law.

“We reject the platforms’ attempt to waive free-flowing censorship from the freedom of expression guaranteed by the Constitution,” Justice Oldham wrote for the majority. “The platforms are not newspapers. Their censorship is not a speech.”

The Biden administration is supporting the social media companies in the two cases: Moody to NetChoiceNo. 22-277, and NetChoice vs. PaxtonNo. 22-555.

The Supreme Court blocked the Texas law in 2022, with the case moving forward on a 5-4 vote. an unusual coalition in dissent. The court’s three most conservative members — Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch — filed a dissent, saying they had allowed the law to take effect. Justice Elena Kagan, a liberal, also dissented, although she did not join the dissent and did not give her own reasons.

Justice Alito wrote that the issues were so new and important that the Supreme Court should consider them at some point. He added that he was skeptical of the argument that social media companies have editorial discretion protected by the First Amendment, just as newspapers and other traditional publishers do.

“It is not at all clear,” he wrote, “how our existing precedents, which predate the Internet age, should apply to large social media companies.”