The Supreme Court on Monday was skeptical of Florida and Texas laws that bar major social media companies from making editorial judgments about what messages to allow.
The laws were enacted in an effort to protect conservative voices on the sites, but a court decision, expected by June, will almost certainly be the most important statement on the scope of the First Amendment in the Internet age, with broad political implications and economic implications .
A ruling that tech platforms have no editorial discretion in deciding which posts to allow would expose users to a greater variety of viewpoints but would almost certainly amplify the ugliest aspects of the digital age, including hate speech and disinformation.
While a ruling in favor of big platforms like Facebook and YouTube seemed likely, the court also appeared poised to send cases back to lower courts to answer questions about how the laws apply to sites that don’t appear to moderate their users’ speech. users in court. similarly, like Gmail, Venmo, Uber, and Etsy.
The judges disagree on the question of whether the laws, currently blocked, should come into force in the meantime. But the majority seemed inclined to keep them in abeyance while the litigation progressed. Several judges said states violated the First Amendment by telling a handful of major platforms that they could not moderate their users’ posts, drawing distinctions between government censorship prohibited by the First Amendment and the actions of private companies to determine what speech to include on their sites.
“I have a problem with laws that are so broad that they just stifle the word in your face,” Justice Sonia Sotomayor said.
Justice Brett M. Kavanaugh read a sentence from an electoral financing from 1976 decision that has long been a touchstone for him. “The concept that the government can limit the free speech of some elements of our society in order to strengthen the relative voice of others is entirely alien to the First Amendment,” he said, indicating that he rejects states’ contention that they could regulate the fairness of public debate in private contexts.
“I wonder,” said Chief Justice John G. Roberts Jr., “since we’re talking about the First Amendment, whether our first concern should be with the state regulating what, you know, we’ve called the public square modern”.
Henry C. Whitaker, Florida’s attorney general, responded that “the state has an interest, a First Amendment interest, in promoting and securing the free diffusion of ideas.”
Justice Elena Kagan said major platforms have good reason to reject posts that incite insurrection, endanger public health and spread hate speech. “Why isn’t that a First Amendment ruling?” she asked.
The court’s three most conservative members — Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — seemed sympathetic to state laws. All three phrases like “content moderation” were euphemisms for censorship.
As the discussion moved to less prominent sites, judges across the ideological spectrum were troubled by the lack of information about them in documents before the court. Many indicated that they might analyze the First Amendment issue differently depending on the platform.
Justice Kagan asked whether states could tell services like Venmo, Dropbox and Uber that they can’t discriminate based on their users’ views.
“Wouldn’t that be okay?” he asked Paul D. Clement, a lawyer for the challengers.
Mr. Clement said no, responding that all of these services “are still part of the expressive business,” meaning that speech is part of their core business in ways that aren’t true of, say, a gas station or a kiosk. of ice creams.
Other judges asked about email and messaging services.
“Does Gmail have a First Amendment right to delete, say, the Gmail accounts of Tucker Carlson or Rachel Maddow if they disagree with their views?” Justice Alito asked Mr. Clement.
Mr Clement responded that the service “may be able to do so”, adding that such issues had not been the focus of the litigation.
He added that banning platforms from making distinctions based on viewpoints would destroy their businesses.
“If you have to be viewpoint neutral,” he said, “that means if you have materials that address suicide prevention, you also have to have materials that advocate for the promotion of suicide. Or, if you have philo-Semitic materials on your site, then you must allow anti-Semitic materials on your site. And this is a formula for making these websites very unpopular for both users and advertisers.”
Supporters of the laws said they were an attempt to fight what they called Silicon Valley censorship, through which major social media companies had deleted posts expressing conservative views. The laws were motivated in part by some platforms’ decision to bar President Donald J. Trump following the January 6, 2021 attack on the Capitol.
The laws, in Florida and Texas, differ in detail. Florida bars platforms from permanently barring candidates for political office in the state, while Texas bars platforms from removing any content based on a user’s point of view.
“To generalize just a little,” Judge Andrew S. Oldham he wrote a decision that upholds Texas lawFlorida law “prohibits All censorship of Some speakers”, while the Texas one “prohibits Some censorship of All speakers” when they are based on the opinions they express.
The two trade associations challenging the state laws — NetChoice and the Computer & Communications Industry Association — said the actions Judge Oldham called censorship were editorial choices protected by the First Amendment, which generally prohibits government-based restrictions on free speech. on content and point of view.
The groups said social media companies are entitled to the same constitutional protections enjoyed by newspapers, which are generally free to publish what they want without government interference.
Judge Kavanaugh appeared to embrace this position, asking Mr. Whitaker, the lawyer representing Florida, whether states could tell publishing houses, printing presses, movie theaters, bookstores and newsstands what to feature.
Whitaker said newspapers and bookstores engaged in “inherently expressive conduct,” while “our point is that these social media platforms are not like those.”
He said that, in fact, the platforms are common carriers needed to convey everyone’s messages and that Florida law protects free speech by ensuring that users have access to many points of view.
Several justices said it was difficult to reconcile the platforms’ arguments Monday with what they said last year in cases involving Section 230 of the Communications Decency Act, which protects social media companies from liability for what their users post.
In those cases, Justice Thomas said, the platforms argued that they were simply conduits for the speech of others. “Now you are saying that you are engaged in editorial discretion and expressive conduct,” he told Mr. Clement. “Doesn’t that seem to undermine your arguments about Section 230?”
Mr Clement responded that a key part of the provision was intended to protect platforms from liability for making editorial judgements
Federal appeals courts reached conflicting conclusions in 2022 on the constitutionality of the two laws.
A unanimous three-judge panel of the United States Court of Appeals for the 11th Circuit widely welcomed a preliminary injunction blocking the Florida law.
“Social media platforms exercise editorial judgment that is inherently expressive,” Judge Kevin C. Newsom he wrote for the panel. “When platforms choose to remove users or posts, downgrade content in viewer feeds or search results, or penalize violations of their community standards, they engage in activities protected by the First Amendment.”
But a three-judge panel on the Fifth Circuit reversed a lower court’s order blocking the Texas law.
“We reject the platforms’ attempt to wring freewheeling censorship directly from the Constitution’s free speech guarantee,” Justice Oldham wrote for the majority. “Platforms are not newspapers. Their censorship is not speech.”
The Biden administration supported the social media companies in the two cases, Moody vs. NetChoiceNo. 22-277, e NetChoice vs. PaxtonNo. 22-555.
The Supreme Court blocked the Texas law in 2022 as the case moved forward by a 5-4 vote.
Justice Alito wrote that the issues were so novel and significant that the Supreme Court would have to consider them sooner rather than later. He added that he is skeptical of the argument that social media companies have editorial discretion protected by the First Amendment as newspapers and other traditional publishers do.
“It is not at all obvious,” he wrote, “how our existing precedents, which predate the Internet age, should apply to large social media companies.”