This morning, the Supreme Court will hear oral arguments in two cases that could shape the future of social media platforms.
The justices are examining the constitutionality of Florida and Texas laws that place limits on how Facebook, X/Twitter, Instagram and other social media platforms can moderate their content.
The laws, which were supported by right-leaning lawmakers, were rooted in the idea that tech platforms were biased against conservatives. They have long criticized social media practices that have limited the reach of certain accounts, while tech companies have denied that they discriminate against certain types of political speech. Meta, Google and other tech giants, which have restricted accounts trading misinformation about COVID-19 and election integrity, as well as hate speech, say the laws violate the First Amendment.
The decision by Twitter, Facebook and YouTube to suspend Donald Trump’s accounts after the January 6 attack on the Capitol fueled the move to pass state laws. His accounts have since been restored.
Florida law prohibits platforms from banning or suspending the accounts of candidates for public office. It is also prohibited to restrict accounts working for the “press organization.” Texas law prohibits social media platforms from removing viewpoint-based content. Both laws allow users to sue the platforms for damages. It also requires platforms to disclose their decisions regarding content moderation.
The states defended the laws, arguing that the platforms function as a public arena and should not be able to have absolute power to determine what users see and what they cannot see. Ultimately, the argument is that the platforms act as something akin to a utility, i.e. a telephone company, that places no restrictions on the content that is transmitted over its lines.
However, social media platform trade groups say the laws violate their First Amendment rights to determine what should be allowed on their platforms. They warn that the situation is not very different from the government’s need for a traditional media company, for example New York times Or Fox News, to distribute certain content.
The Joe Biden administration has filed a friend-of-the-court brief siding with tech companies.
A federal appeals court in Florida has concluded that parts of the Florida law likely violate the First Amendment, contradicting a ruling by a Texas panel. This set up the case for today’s showdown in the Supreme Court.
The Reporters Committee for Freedom of the Press argued in a brief that in these cases, Texas and Florida would undermine First Amendment guarantees of editorial independence in order to control the audiences of a few large online platforms that, in their view, makes them unfair or unjust. Unwise — or even worse — biased judgments about what speech is worth sharing with its users.
“While the United States has chosen to target some of today’s new digital platforms, it has not yet distinguished between the expressive judgments targeted by its laws and those made daily by a multitude of other spokesmen, from the traditional press to Hollywood studios.”