Supreme Court justices seem split on landmark challenge to Florida, Texas laws restricting social media regulation
Supreme Court justices struggled Monday with a closely-watched challenge to laws in Florida and Texas that curtail content regulation by social media giants — with both sides of the argument casting themselves as defenders of free speech online.
Over almost four hours of oral arguments, the high court’s nine members scrutinized aspects of laws adopted by Republican legislatures and signed by GOP governors in 2021 — but appeared wary of issuing a sweeping judgment on their constitutionality, likely ensuring that similar efforts will be made by states in the future.
“Separating the wheat from the chaff here is pretty difficult,” Justice Neil Gorsuch said at one point, while fellow Justice Amy Coney Barrett warned that the cases presented “land mines” for her and her colleagues.
Florida and Texas rushed to enact laws regulating social media companies’ moderation policies after former President Donald Trump was booted off Facebook and X, then known as Twitter, following the Jan. 6, 2021, Capitol riot.
The Texas law bars firms from banning users in response to their views and requires companies to divulge their content policies. Florida prohibits companies from banning public figures and takes aim at so-called shadow banning, in which social media platforms quietly throttle the reach of certain users.
A key split appeared to emerge among the justices over whether online platforms are publishers, which enjoy broad First Amendment protection, or common carriers subject to government regulation in the same manner as public utilities.
Chief Justice John Roberts appeared to lean toward the former camp, asking at one point: “I wonder, since we’re talking about the First Amendment, whether our first concern should be with the state regulating what we have called the modern public square?”
Fellow conservatives Samuel Alito and Clarence Thomas, who drew laughs when he quipped that “I’ve been fortunate, or unfortunate, to have been here for most of the development of the internet,” seemed to lean the other way.
Thomas suggested at one point that social media companies were seeking constitutional protection for “censoring other speech,” while Alito asked whether the term “content moderation” was not merely a “euphemism for censorship” — adding later that the phrase struck him as Orwellian.
Still another conservative justice, Brett Kavanaugh, appeared to take issue with Alito’s statement, saying: “When I think of Orwellian, I think of the state, not the private sector, not private individuals.”
Kavanaugh also grilled Florida Solicitor General Henry Whitaker over the Sunshine State legislation, telling him: “A really important sentence in our First Amendment jurisprudence … [is] the ‘concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.’”
The justice then asked whether “the government apply such a policy to publishing houses and printing presses and movie theaters about what they show.”
“Why isn’t that a classic First Amendment violation,” added liberal Justice Elena Kagan, “for the state to come in and say, ‘We’re not going to allow you to enforce those sorts of restrictions?’”
In response to Kavanaugh, Whitaker answered that social media giants were not engaging in “inherently expressive conduct” like newspapers and bookstores.
Other questions were posed from the bench about how leaving the state laws in place might affect e-commerce sites like Uber and Etsy, as well as email and messaging services.
Trump, 77, has since been allowed back on both Facebook and X, though he rarely uses them in favor of his own Truth Social platform.
Trade groups NetChoice and the Computer and Communications Industry Association (CCIA) represented the social media platforms, arguing that the two laws trample upon their basic First Amendment rights.
“It interferes with editorial discretion. It compels speech. It discriminates on the basis of content, speaker, and viewpoint,” tech industry attorney Paul Clement said of the Florida law.
“It does all this in the name of promoting free speech, but loses sight of the first principle of the First Amendment, which is it only applies to state action.”
Clement also contended that editorial discretion is “absolutely necessary” due to the vast volume of content on the platforms and the need to please advertisers as well as users.
At other times, the justices seemed leery of the idea of letting Big Tech operate with impunity.
“Does Gmail have a First Amendment right to delete, let’s say, Tucker Carlson’s or Rachel Maddow’s Gmail accounts if they don’t agree with his or her viewpoints?” Alito asked Clement, who acknowledged in response that it “might be able to do that.”
“This is a sprawling statute and it makes me a little bit nervous,” said Barrett, who added of the companies that it was “not obvious to me in any way that they can’t qualify as common carriers.”
The Biden administration is siding with the tech industry groups, but Solicitor General Elizabeth Prelogar asked the justices to issue a narrow ruling against the state laws, noting that the Justice Department does not believe “social media platforms are immune from government regulation.”
“Governments at every level, obviously have an important interest in facilitating communication and the free exchange of ideas,” Prelogar argued. “But in promoting that interest, governments have to stay within the bounds of the First Amendment.”
Ahead of the hearing, Florida Gov. Ron DeSantis insisted that regardless of the Supreme Court’s ruling, his administration would continue to battle Big Tech.
“We knew this day would come,” DeSantis said. “Whatever the court decides, we’re going to make sure that we’re doing everything we can to ensure that people have the right to speak in these public forums.”
The Texas case is NetChoice v. Paxton, while the Florida case is Moody v. NetChoice.
The Supreme Court is expected to rule on the matter before the end of June.
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