Supreme Court Debates State Laws Restricting Social Media Content Moderation: 'A Bunch of Landmines'

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The Supreme Court on Monday expressed serious concern about the wide range of state laws that restrict how large social media companies moderate users' content, a digital free speech case with implications in the political and business spheres.

Separate laws passed in Florida and Texas and now being challenged in court would require big tech companies like X, formerly Twitter, and Facebook to host third-party communications, but would prevent those companies from blocking or deleting users' posts based on in political views.

The regulations aim to address what some lawmakers call “censorship” of conservative messages and ban politicians, such as former President Trump, for violating subjective policies on offensive or “problematic” content.

But tech companies claim the First Amendment right as private entities to editorially regulate the billions of daily voices on their platforms, from political speech and recipe sharing to incitement and obscenity.


The Supreme Court of the United States, on November 15, 2023, in Washington. (AP Photo/Mariam Zuhaib, File)

Justices on both sides of the ideological spectrum openly questioned whether the regulations would make it impossible for private companies to operate as a forum for free speech.

“It covers almost everything,” Judge Sonia Sotomayor said of the Florida law, which she said would affect what crafts retailer Etsy would have to allow on its digital marketplace. “That's viewpoint discrimination. This falls under many of their listings, prohibitions and disclosure requirements. Why are we imposing that on something like this?”

“The First Amendment restricts what the government can do,” Chief Justice John Roberts told the Texas attorney general. “What the government is doing here is saying, 'You have to do this, you have to transport these people; if you don't, you have to explain yourself.' That's not the First Amendment.”

But there was widespread unease about the best approach to take at this stage.

Some justices suggested that large companies that host a wide range of speech platforms could exercise greater editorial control, but that e-commerce sites like Etsy, Venmo and Uber could be regulated by states to some extent.

“This is a long statute and it makes me a little nervous,” said Judge Amy Coney Barrett, about how a judicial opinion might apply to the infinite variety of digital media. She said the competing interests “had a lot of landmines.”

Others on the court wondered what effect big tech companies have on public discourse.

“There's a lot of new terminology in these cases, and just out of curiosity, and one of them is content moderation,” Justice Samuel Alito said. “Is it more of a euphemism for censorship?”


Associate Justice Samuel Alito

Associate Justice Samuel Alito (AP Photo/J. Scott Applewhite, File)

Alito also warned about resisting “the Orwellian temptation to recategorize offensive conduct in seemingly bland terms.”

The Florida law would prevent a social media platform from censoring, prioritizing or conducting so-called “shadow bans” “based on content.” It would also avoid “intentionally unseating a candidate” for public office because of material published by or about that candidate.

Both Florida and Texas would also require those companies to notify a user when their content has been modified or edited, along with an explanation for that action.

The states argue that social media companies have enormous influence over the news and information the public sees, and say they have a long tradition of ensuring their citizens have full access to a variety of points of view, calling the platforms of social networks the new “digital public square”.

The Florida and Texas laws were passed shortly after Twitter/X and Facebook separately removed Trump from their platforms, over his posts related to the January 6, 2021, Capitol riot by his supporters.

Trump and a coalition of Republican-led states are among those that filed separate amicus briefs in support of Florida and Texas.

The Biden administration has opposed the state laws.


Members of the Supreme Court

Members of the Supreme Court (United States Supreme Court Collection via Getty Images)

Trade groups representing big tech companies told the court that the laws violate their free speech rights to decide what content complies with their policies, saying their forums should not be an open portal for offensive or dangerous speech, including bullying, harassment, terrorist ideology, racial hatred, medical misinformation and electoral fraud.

In nearly four hours of oral arguments that stretched well into the afternoon, the justices weighed whether to offer a broad ruling on the First Amendment implications of state laws, or a more narrow approach that could send lower courts back to analyze how those contents are applied. Moderation policies would apply.

US Constitution

The United States Constitution was ratified by nine of the 13 states, making it binding. (iStock)

“Why isn't it a classic violation of the First Amendment for the state to come and say, 'We're not going to allow you to enforce those kinds of restrictions,'” Justice Elena Kagan asked.

“In your opening remarks,” Justice Brett Kavanaugh asked Florida Attorney General Henry Whitaker, “you said that the design of the First Amendment is to prevent the ‘suppression of speech.’ And you omitted what I understand to be three words key in the First Amendment or to describe the First Amendment, 'by the government,'” and Kavanaugh suggests that private companies should have greater freedom to moderate their users' content.


Lawyers for the states told the court that social media companies lack free speech protections because they only “host” points of view, similar to the telecommunications industry, known as “common carriers,” which transmits speech without editorial supervision.

“Separating the wheat from the chaff here is quite difficult,” said Justice Neil Gorsuch.

Justice Clarence Thomas, who gleefully noted that he was the only member of the court to precede the widespread use of the Internet, was especially animated in his extensive comments on the implications, asking tough questions of both sides.

“What do you do if it's a deep learning algorithm that learns itself and has very little human intervention?” he asked her at one point. “So who's talking, the algorithm or the person?”

After the arguments, Florida Governor Ron De Santis, on Twitter/X no less, said: “We will make sure we do everything we can to ensure people have the right to speak in these public forums. We want more.” speech, no less speech.”

These cases are just the latest in what is shaping up to be a busy period on the digital front at the Supreme Court.

In March, the justices will hear an appeal from GOP-controlled states over whether the federal government's efforts to combat online misinformation violate users' free speech rights on social media platforms.

Here, too, those states say conservative political views are being silenced, following pressure on social media companies by the Biden administration.

And judges have already heard arguments about whether public officials can block critical comments from constituents on their social media accounts.

Rulings in the cases filed Monday, Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, are expected in late June.

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