The Supreme Court heard oral arguments in two cases that could change how social media companies moderate content that users post on their sites and whether they can block some users altogether. The cases from Florida and Texas both look into censorship and First Amendment rights.
Florida and Texas passed what they described as anti-censorship laws in 2021 in response to what their state governments said was an anti-conservative bias from the social media platforms.
The Florida law bans social media companies from deplatforming a political candidate or a journalistic enterprise. The Texas law states a social media platform or interactive computer service may not censor a user based on their viewpoint.
In the Florida case, the justices will answer whether the First Amendment prohibits a state from requiring social media companies to host third-party communications. The judges will also determine whether the state can require the companies to notify and provide an explanation to their users if they do censor their speech.
“The platforms do not have a First Amendment right to apply their censorship policies in an inconsistent manner and to censor and deplatform certain users,” said Florida Solicitor General Henry Whitaker, R, during oral arguments.
“Florida’s effort to level the playing field and to fight the perceived bias of big tech violates the First Amendment several times over,” said Paul Clement, R, an attorney representing social media companies. “It interferes with editorial discretion, it compels speech, it discriminates on the basis of content, speaker and viewpoint.”
In the Texas case, the justices will determine if the First Amendment allows websites to choose how they publish and distribute speech.
“When editors or speakers engage in viewpoint discrimination, that is their First Amendment right,” Clement said. “It is also absolutely vital to the operation of these websites, because if you have to be viewpoint neutral, that means that if you have materials that are involved in suicide prevention, you also have to have materials that advocate suicide promotion. Or if you have materials on your site that are pro-semitic, then you have to let on materials onto your site that are antisemitic. And that is a formula for making these websites very unpopular to both users and advertisers.”
The court is also deciding whether these laws are unconstitutional in all situations, known as a facial challenge, or only unconstitutional as they apply to the specific circumstances of the plaintiff, known as an applied challenge.
There are also questions as to who these laws apply to. Much of the attention falls on social media sites like Facebook, X, formerly known as Twitter, and YouTube, where individuals post text, pictures and videos to be seen by others.
Arguments also touched on whether these laws apply to a host of other sites where individuals can post anything, including e-commerce sites.
“This is so, so broad,” Justice Sonia Sotomayor told Whitaker. “It’s covering almost everything. But the one thing I know about the internet is that its variety is infinite.”
In an amicus brief, Open Market Institute, which represents eBay and Etsy, wrote:
“It ought to be fundamental to the First Amendment that a marketplace for handmade t-shirts and coffee mugs should not be forced by a state’s ‘free speech’ regulations to carry ‘I ♥ Hitler’ paraphernalia out of ‘fairness’ to all viewpoints, or even to be forced to explain and justify — with individualized, case-specific reasons — why those views or products were taken down.”
“So Florida’s law, so far as I can understand it, is very broad,” Justice Amy Coney Barrett said. “And we’re talking about the classic social media platforms, but it looks to me like it could cover Uber, it looks to me like it could cover just Google search engines, Amazon Web Service, and all of those things would look very different.”
A final decision on these cases will come out by June. Both laws were blocked from going into effect while the court reaches a decision.
