The Supreme Court will consider Monday whether Florida and Texas can regulate social media to protect “conservative speech” or, instead, whether Facebook, YouTube, TikTok and others have the right to free speech to decide what appears on their sites. sites.
This First Amendment clash also presents a dispute over how to characterize these popular and profitable sites. Are private companies like a newspaper or bookstore with full free speech rights to decide what material to include or exclude?
Or, as Justice Clarence Thomas has insisted, is it more appropriate to describe these online platforms as “common carriers,” like a telephone company with a legal duty to transmit all speech and not discriminate against anyone based on the message?
The outcome will be closely watched in both blue and red states.
Last year, the California Legislature adopted a measure to prohibit online companies from collecting and selling data on children and teens, but a federal judge in San Jose blocked it on First Amendment grounds. The state's appeal is now before the Ninth Circuit Court.
The Biden administration is also facing lawsuits from several Republican states for allegedly pressuring social media sites to remove “misinformation” about the dangers of COVID-19 vaccines. The Supreme Court will hear that case next month.
The Florida and Texas laws under review at the Supreme Court arose from allegations that former President Trump was being discriminated against or blocked by social media sites, including Twitter.
In 2021, Florida Gov. Ron DeSantis signed his state's first-in-the-nation law into law, saying it targeted “Big Tech censors” who “discriminate in favor of the dominant ideology of Silicon Valley.”
The measure, adopted before billionaire Elon Musk bought Twitter and changed its name to X, applies to social media sites with more than $100 million in annual revenue or more than 100 million users.
Authorizes lawsuits for damages for “unfair censorship” and large fines if a social media site “removes” a candidate from office, as happened for a time to Trump after he continued to spread false claims about the 2020 election .
Texas Gov. Greg Abbott said “conservative discourse” was threatened when he signed a somewhat broader bill a few months later. He says a social media platform with more than 50 million users in the United States “may not censor … or otherwise discriminate against the expression” of users based on his point of view.
NetChoice and the Computer and Communications Industry Association. filed a lawsuit challenging both laws on free speech grounds, and both were stayed, including by a 5-4 order from the Supreme Court.
The South's two federal appeals courts, speaking through Trump appointees, took opposing positions on the free speech issue.
Judge Kevin Newsom, speaking on behalf of the 11th Circuit Court in Atlanta, blocked most of the Florida law from taking effect, saying it was unconstitutional.
The First Amendment “restricts government actors and protects private actors,” he said. Social media sites are private businesses and “simply put, with minor exceptions, the government cannot tell a private person or entity what to say or how to say it.”
Judge Andrew Oldham, speaking for the Fifth Circuit Court in New Orleans, upheld the Texas law on the basis that the state sought to protect the free speech rights of Texans.
Oldham, Abbott's former attorney and a law clerk to Justice Samuel A. Alito Jr., said it's a “rather strange inversion of the First Amendment” to say that social media platforms have the “right to muzzle speech.” … We reject the idea that corporations have a free First Amendment right to censor what people say.”
Both state measures also require social media sites to disclose how they decide to remove information or users. That part of Florida law was not blocked by lower courts.
