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Why the Supreme Court is still vexed on tech

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Feb 26, 2024
Illustration of a gavel hovering over a phone with an image on the screen of a gavel hovering over a phone, in a recursive pattern.

Illustration: Aïda Amer/Axios

Social media keeps vexing the Supreme Court, with justices expressing skepticism Monday over laws from Texas and Florida.

The big picture: SCOTUS heard arguments on the states' content moderation laws while grappling with the question of how tech can be regulated at all.

Between the lines: Those watching Monday's arguments before SCOTUS would find it hard to argue that the attorneys representing Texas and Florida offered bulletproof defenses of their 2021 laws.

  • Representatives for Texas and Florida kept comparing social media to telephone carriers, saying they should be regulated as such (meaning content rules would have to be far looser).
  • Justices mostly responded that that framing isn't how they are looking at the case, and platforms can't be regulated like phone companies.

Yes, but: Despite skepticism of the constitutionality and scope of the Florida and Texas laws, the justices weren't ready to cede the government's ability to regulate tech altogether, either.

  • Justices were sympathetic to the idea that private companies are protected by the First Amendment.
  • But they prodded NetChoice attorney Paul Clement, too, including on whether companies could explain why they took down certain content, drawing comparisons with what is required of large tech companies in Europe under the Digital Services Act.
  • Justice Samuel Alito: "If it's not too much of a burden for your clients to do it in Europe, how can it be too much of a burden to do it here?"

State of play: Both conservative and liberal justices struggled with two key questions:

  • If the laws that states keep coming up with to regulate tech are unconstitutional, how can states and the federal government regulate tech?
  • Should content moderation always be considered "speech" by a platform, therefore giving it full protection over its editorial decisions?

Exactly what companies these laws apply to was also unclear.

  • Justices seemed hesitant to say the Texas and Florida laws would not be constitutional as applied to Uber, Venmo and Gmail.

Reality check: This isn't the first time a thorny tech case has confounded the justices. But in the past couple of cases that have reached the Supreme Court, tech has won.

  • In Twitter v. Taamneh and Gonzalez v. Google, justices ruled with the tech companies and declined to narrow the scope of Section 230, but again seemed conflicted on tech's liability and how First Amendment principles should apply to private companies.
  • In 2018, the Supreme Court ruled that the government needs a warrant to access a person's cellphone location history, which tech applauded.

What we're watching: We expect a June ruling on these two cases.

  • Next up for tech at the Supreme Court is Murthy vs. Missouri on March 18, when justices will hear arguments over how much private companies can engage with the federal government on decisions over content.
  • If Texas' and Florida's laws are allowed to stand, tech companies could offer personalized feeds and services for users in those states. But they could also leave those states entirely.
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