Supreme Court Seems Unsure How To Proceed In Blockbuster Social Media Censorship Cases

One of the central questions during oral arguments was how the new laws could go beyond social media and even possibly influence private communication.

The U.S. Supreme Court did not appear ready to resolve major questions related to free speech on social media and the regulation of digital platforms after arguments on Monday over two controversial laws passed by Republican-controlled legislatures in Florida and Texas.

The lack of clarity over the outcome of the two cases, known as Moody v. Netchoice (Florida) and Netchoice v. Paxton (Texas), stemmed from procedural concerns as well as the possible breadth of the decision that most justices appeared to want to reach.

At issue were two laws enacted in 2021 in response to the perception among conservatives that social media companies were censoring or removing posts containing conservative political views. The two laws prohibit large social media platforms from banning, removing or hiding content based on its political viewpoint.

Netchoice, the lobbying arm of the tech industry, challenged the laws in court and won a preliminary injunction in the U.S. Court of Appeals for the 11th Circuit blocking the Florida law’s implementation while the 5th Circuit upheld Texas’ law. The state of Florida appealed the 11th Circuit decision and Netchoice appealed the 5th Circuit ruling to the Supreme Court.

In its appeal to the Supreme Court, Netchoice sought to have the Florida law thrown out entirely as unconstitutional. The lobbying group argued that content moderation done by social media platforms is no different from the permitted “editorial discretion” of newspapers, which the Supreme Court had granted with broad First Amendment protection in the 1970s.

Florida and Texas each argued that the platforms should not be treated like newspapers but instead as common carriers, such as telegraph, railroad and telephone companies, which are subject to nondiscrimination laws that prohibit favoring or preferring some individuals or companies over others. Their new laws, they argued, simply enforced similar rules on the content transmitted on platforms held open to the public.

Chris Marchese (center), director of NetChoice Litigation Center, speaks to the news media Monday outside the U.S. Supreme Court.
Chris Marchese (center), director of NetChoice Litigation Center, speaks to the news media Monday outside the U.S. Supreme Court.

Other critics of Netchoice’s proposed outcome argued that if the court granted a newspaper-like free speech protection to digital platforms, it could hamstring regulation of not just social media but all online businesses. This became a key sticking point in Monday’s arguments despite apparent near unanimous agreement among the justices that the two laws infringed on the platforms’ First Amendment protections.

That unanimity appeared almost immediately when arguments began.

The “first concern” the court should have with regard to the First Amendment would be “the state regulating what we have called the modern public square,” Chief Justice John Roberts said.

“The concept that the government may restrict the speech of some elements in order to enhance others is foreign to the First Amendment,” Justice Brett Kavanaugh added, citing the court’s 1976 precedent in Buckley v. Valeo that struck down political campaign spending limits as a violation of free speech rights.

Justice Elena Kagan presented the hypothetical of a social media site that held itself open to the public but wanted to prohibit “misinformation of particular kinds that they think is extremely damaging to society” or “hate speech or bullying.”

“In that world, why isn’t that a classic First Amendment violation for the state to come in and say we’re not going to allow you to enforce those restrictions?” Kagan asked.

The deck appeared stacked against Florida and Texas until Justice Samuel Alito pressed Netchoice’s lawyer Paul Clement on the scope of Big Tech’s argument that digital companies are protected from government regulation by the First Amendment, presenting a hypothetical that moved beyond social media.

“Does the Florida law cover Gmail?” Alito asked about the email service provided by Google, a subsidiary of Alphabet.

Clement replied that, yes, “it could cover Gmail.”

“Does Gmail have a First Amendment right to delete Tucker Carlson’s or Rachel Maddow’s email accounts?” Alito asked.

“They might be able to do that,” Clement said.

Later pressed by other justices, Clement also said that under Netchoice’s theory, digital companies could also moderate and delete direct messages to and from users on platforms like Facebook Messenger or WhatsApp, which are used for private communication between individuals. Alito also raised the question of whether Netchoice’s argument would allow companies like Uber to discriminate against users or drivers based on their viewpoint and defend it as a form of editorial discretion.

This was the defining moment of the arguments. The justices appeared to remain unanimous in their belief that some content moderation by social media platforms was absolutely covered by the First Amendment but, seeing the breadth of Netchoice’s argument, began to wonder what possible outcome could prevent them from extending that argument further than they wanted.

Florida Gov. Ron DeSantis responds to a TV reporter's question on May 24, 2021, after he signed legislation to make it harder for social media companies to punish users who violate terms of service agreements.
Florida Gov. Ron DeSantis responds to a TV reporter's question on May 24, 2021, after he signed legislation to make it harder for social media companies to punish users who violate terms of service agreements.
Carl Juste/Miami Herald via Getty Images

“What’s hard about this case is that, let’s posit that I agree with you about Facebook and YouTube and those core social media platforms, don’t we have to consider these questions Justice Alito is raising about DMs and Uber and Etsy?” said Justice Amy Coney Barrett. She added, “I’m not sure I agree with you about DMs and Gmail. It’s not obvious to me anyway that they can’t qualify as common carriers.”

This turned the arguments into a debate over procedure. Since the Florida case had come before the court as a challenge to the entire law, Florida needed to show that the law had some legitimate application. The justices saw some legitimate application where the law covered digital services like email, direct messages or ride-sharing services, which they did not believe deserved sweeping free speech protection. But the justices also very clearly thought that the law was unconstitutional in how it applied to content moderation on social media platforms.

Discussion then turned to how to split the baby. The court could vacate the lower court’s order and remand the case with new instructions about how to develop the record, what evidence needed to be presented and what questions were to be adjudicated. The existing injunction preventing the enforcement of the law could be kept in place in the meantime, or not.

Arguing for the federal government, Solicitor General Elizabeth Prelogar took a middle ground, asking the court to reach a limited decision, prohibiting the law’s enforcement on expressive speech on social media platforms while not accepting the larger scope of Netchoice’s First Amendment argument.

But the justices were confused as to how to do this since the case came before them as a challenge to the entire state law.

By the end of the Florida arguments, it increasingly sounded like the justices would send the case back to the lower courts to be reheard with new instructions. That would take another year or two before appeals brought a new version of the case back to the Supreme Court.

The Texas law, however, may present the court with a clearer opportunity to rule on the constitutionality of limits placed on social media moderation. The law has a much narrower definition of a social media platform, which could allow a narrower scope in its ruling than would the Florida case. Still, the same concerns remained about what other functions ― like direct messaging or email ― could be granted protections that the justices don’t want to provide.

The court has until the end of June to issue a decision in the two cases.

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