The Supreme Court will hear arguments Monday in a pair of cases that could fundamentally change speech on the Internet by defining, for the first time, what rights social media companies have to limit what their users can post.
The court's decision, expected in June, will almost certainly be its most important statement on the reach of the First Amendment in the Internet age, and will have significant political and economic implications. A decision that tech platforms like Facebook, YouTube and TikTok have no editorial discretion to decide which posts to allow would expose users to a wider variety of viewpoints, but would almost certainly amplify the uglier aspects of the digital age, including hate speech and misinformation.
This, in turn, could deal a blow to the platforms' business models, which rely on curation to attract users and advertisers.
Supporters of the laws said they were an attempt to combat what they called Silicon Valley censorship, through which major social media companies had removed posts expressing conservative views. The laws were prompted in part by some platforms' decisions to ban President Donald J. Trump after the Jan. 6, 2021, attack on the Capitol.
The laws of Florida and Texas differ in their details. Florida prohibits platforms from removing any content based on a user's point of view, while Texas prevents platforms from permanently banning candidates for political office in the state.
“To generalize a little” Judge Andrew S. Oldham wrote in a decision upholding Texas lawFlorida law “prohibits all censorship of some speakers,” while the Texas one “prohibits some censorship of all speakers” when based on the opinions they express.
The two trade associations challenging the state laws — NetChoice and the Computer & Communications Industry Association — said the actions Judge Oldham called censorship were editorial choices protected by the First Amendment, which generally prohibits government restrictions on speech based on the content and point of view.
The groups said social media companies were entitled to the same constitutional protections enjoyed by newspapers, which are generally free to publish whatever they want without government interference.
States responded that Internet platforms were necessary common media to convey everyone's messages and that laws protected free speech by ensuring that users had access to many points of view.
Federal appeals courts reached conflicting conclusions in 2022 about the constitutionality of the two laws.
A unanimous three-judge panel of the 11th U.S. Circuit Court of Appeals. largely maintained a preliminary injunction blocking Florida law.
“Social media platforms exercise editorial judgment that is inherently expressive.” Judge Kevin C. Newsom wrote for the panel. “When platforms choose to remove users or posts, deprioritize content in viewers' feeds or search results, or penalize violations of their community standards, they engage in activities protected by the First Amendment.”
But a divided three-judge panel of the Fifth Circuit reversed lower court order blocking Texas law.
“We reject the platforms' attempt to extract a free censorship right from the Constitution's free speech guarantee,” Justice Oldham wrote for the majority. “The platforms are not newspapers. “His censorship is not expression.”
The Biden administration supports social media companies in both cases, Moody v. NetChoiceNo. 22-277, and NetChoice v. PaxtonNo. 22-555.
The Supreme Court blocked the Texas law in 2022 as the case moved forward by a 5-4 vote, with an unusual dissident coalition. The court's three most conservative members — Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch — filed a dissent, saying they would have allowed the law to take effect. Justice Elena Kagan, a liberal, also dissented, although she did not join the dissent and did not give her own reasons.
Justice Alito wrote that the issues were so novel and significant that the Supreme Court would have to consider them at some point. He added that he was skeptical of the argument that social media companies have editorial discretion protected by the First Amendment, just like newspapers and other traditional publishers.
“It is not at all obvious,” he wrote, “how our existing precedents, which predate the Internet era, should apply to large social media companies.”
