Supreme Court hears Florida, Texas social media cases
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The U.S. Supreme Court building on Feb. 7, in Washington, DC. Photo: J. David Ake/Getty Images
Supreme Court justices seemed skeptical of arguments from Florida and Texas defending social media content laws Monday, but also appeared to leave the door open to potential internet regulation in the future.
The big picture: SCOTUS is weighing how much freedom tech platforms should have over what people post, balancing First Amendment rights with principles of free speech, and whether platforms should be considered "town squares."
Driving the news: Two social media content moderation laws from 2021 landed before the Supreme Court after lower courts issued conflicting rulings on their constitutionality.
- The Texas and Florida laws are slightly different but both argue essentially the same thing: Tech companies like Meta and YouTube do not have a First Amendment right to ban certain user-generated content based on politics or "viewpoint."
- NetChoice, arguing on behalf of the tech companies, has repeatedly argued platforms have a First Amendment right to moderate and remove user content, per their own rules.
- The states both argue that tech platforms should be regulated like "common carriers" such as telephone services, giving them far less latitude to exclude users for behavior or what they post.
State of play: Justices questioned the scope and breadth of the Florida law and which platforms it would apply to, arguing that it would end up including sites like Etsy and force them to sell products they don't want.
- "It covers almost everything," Justice Sonia Sotomayor said of the Florida law. "But one thing I know about the internet is that its variety is infinite."
- Henry Whitaker, Florida's solicitor general, didn't say exactly who would be covered by the law.
- Sotomayor and Justice Ketanji Brown Jackson said the Florida law was overly broad.
- Other justices were worried about the breadth of protections internet companies are seeking with a ruling against the states; and asked if a ruling in their favor would allow for actions like deleting users' Gmail accounts.
Friction point: Paul Clement, the attorney representing NetChoice, said if the Florida and Texas laws were able to stand, tech platforms may shy away from hosting any content beyond, for example, pet photos, in fear of running afoul of the law.
- Forcing platforms to host certain speech may cause them to pull back on different types of speech that may be considered controversial or political, he said, making platforms less dynamic and useful.
- The Justice Department, which argued that the court should block the Texas law and uphold a lower court ruling which struck down provisions in the Florida law, argued that private companies are not bound by the same rules as the government and can ban whatever speech they want.
- Justice Brett Kavanaugh said state control of speech, rather than by private companies, was "Orwellian."
Reality check: Until Congress passes a law that would change content moderation laws or impose other obligations on tech platforms around privacy or user safety, the First Amendment gives companies wide latitude to remove whatever kind of content they want.
What's next: The court is expected to issue a decision by June.
