The Supreme Court will hear arguments Monday in two cases that could fundamentally change speech on the internet by defining for the first time the right of social media companies to limit what users post.
The court's decision, expected by June, will almost certainly be the most important statement on the scope of the First Amendment in the internet age and will have major political and economic implications. The ruling that tech platforms like Facebook, YouTube, and TikTok lack editorial discretion to decide what posts are allowed will expose users to a more diverse range of viewpoints, but will also expose users to more diverse viewpoints, including hate speech and It is almost certain to amplify some of the ugliest aspects of the digital age, such as disinformation.
That, in turn, could hurt the business models of platforms that rely on curation to attract users and advertisers.
Supporters of the law said it was an attempt to counter what they called Silicon Valley censorship, where major social media companies have removed posts expressing conservative views. The law was prompted in part by some platforms' decision to ban President Donald J. Trump from entering the country after the Jan. 6, 2021, attack on the Capitol.
The specifics of the law differ in Florida and Texas. Florida prohibits platforms from permanently banning candidates for political office in the state, and Texas prohibits platforms from removing content based on users' views.
“To generalize a bit,” Judge Andrew S. Oldham wrote in his decision upholding the Texas law, Florida law “prohibits the following:” all censorship of Several Speaker,” while speakers in Texas are “banned.” Several censorship of all Based on the views expressed by the “speaker”.
Two industry groups challenging the state law, NetChoice and the Computer and Telecommunications Industries Association, argue that what Judge Oldham called censorship is a violation of the First Amendment to the U.S. Constitution, which generally prohibits government restrictions on speech based on content or point of view. It said it was an editorial choice protected by Article 1.
The group argued that social media companies are entitled to the same constitutional protections that newspapers enjoy, and that newspapers are generally free to publish what they like without government intervention.
States responded that internet platforms are necessary carriers for transmitting everyone's messages, and the law protects free speech by ensuring users have access to many viewpoints. .
In 2022, a federal appeals court reached conflicting conclusions about the constitutionality of both laws.
A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit largely unanimously upheld a preliminary injunction blocking Florida's law.
“Social media platforms exercise inherently expressive editorial judgment,” Judge Kevin C. Newsom wrote to the committee. “If a platform removes users or posts, deprioritizes content in audience feeds or search results, or sanctions violations of community standards, the platform is protected by the First Amendment. You are engaging in an activity.”
But a split on the 5th Circuit's three-judge panel reversed a lower court's order blocking the Texas law.
“We reject the platforms' attempts to extract unfettered censorship from the Constitution's guarantee of free speech,” Judge Oldham wrote for the majority. “Platforms are not newspapers. Their censorship is not speech.”
The Biden administration is supporting social media companies in two cases: Moody v. NetChoice, No. 22-277 and NetChoice v. Paxton, No. 22-555.
The Supreme Court blocked the Texas law in 2022, but the case proceeded on a 5-4 vote, creating an unusual coalition of opponents. The court's three most conservative justices, Justices Samuel A. Alito Jr., Justice Clarence Thomas, and Justice Neil M. Gorsuch, dissented, saying they would allow the law to go into effect. Liberal Justice Elena Kagan also wrote her dissent, but she did not join her dissent or offer her own reasons.
Justice Alito wrote that the issue is so novel and important that the Supreme Court will need to consider it at some point. He added that he is skeptical of the argument that social media companies have the same First Amendment-protected editorial discretion as newspapers and other traditional publishers.
“It is far from clear how existing precedents from before the Internet era should apply to large social media companies,” he wrote.
