The Supreme Court agreed Friday to decide whether Florida and Texas can prohibit large social media companies from removing posts based on the opinions they express, setting the stage for a major ruling on how the First Amendment applies to powerful tech platforms.
Supporters of the laws argue that the measures are necessary to combat what they called Silicon Valley censorship, saying that big platforms had removed posts that expressed conservative opinions on topics such as the coronavirus pandemic and accusations of election fraud. In particular, they objected to some platforms’ decisions to ban President Donald J. Trump after the January 6, 2021, attack on the Capitol.
Two trade groups, NetChoice and the Computer & Communications Industry Association, had challenged the laws, saying the First Amendment prevents the government from telling private companies whether and how to broadcast speech.
The court’s decision to hear the cases was not surprising. In each case, both sides had urged the justices to do so, citing a clear conflict between two federal appeals courts. One ruled against the Florida law, the other in favor of the Texas law.
The approaches of the two states were similar but not identical, Judge Andrew S. Oldham wrote in a decision upholding Texas law. “To generalize a bit,” Florida law “prohibits all censorship of some speakers,” while Texas law “prohibits some censorship of all speakers” when it is based on the opinions they express.
In tech/” title=”” rel=”noopener noreferrer” target=”_blank”>a declaration Issued when he signed Florida’s bill, Gov. Ron DeSantis, now a Republican presidential candidate, said the law’s goal was to promote conservative views. “If Big tech censors enforce the rules inconsistently, to discriminate in favor of the dominant ideology of Silicon Valley, they will now be held accountable,” he said.
The Texas law applies to social media platforms with more than 50 million monthly active users, including Facebook, YouTube and X, the site formerly known as Twitter. It doesn’t appear to reach smaller platforms that appeal to conservatives, and it doesn’t cover sites dedicated to news, sports, entertainment and other information that isn’t primarily generated by their users.
The sites in question are largely prohibited from removing posts based on the views they express, with exceptions for the sexual exploitation of children, incitement to criminal activity and some threats of violence.
A unanimous three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta last year largely maintained a preliminary injunction against 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.”
A few months later, a divided three-judge panel of the Fifth Circuit, in New Orleans, reversed lower court order blocking Texas law.
“Today we reject the idea that corporations have a free First Amendment right to censor what people say,” Judge Oldham wrote.
He added: “The platforms are not newspapers. “His censorship is not expression.”
The Supreme Court had already had a brush with the Texas case, temporarily blocking its law last year while an appeal moved forward. The vote was 5 to 4, with an unusual dissident coalition.
The court’s three most conservative members (Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch) filed an opinion saying they would have left the law in place and that the issues were so novel and significant that the Supreme Court should consider them. sometime.
“Social media platforms have transformed the way people communicate with each other and get news,” Justice Alito wrote in the dissent. “What is at stake is a groundbreaking Texas law that addresses the power of dominant social media corporations to shape public debate on the important issues of the day.”
Justice Alito added that he was skeptical of the argument that social media companies have First Amendment-protected editorial discretion, like that enjoyed by 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.”
Justice Elena Kagan, a liberal, voted with the dissenters but did not adopt their reasoning or give her own reasons.
The First Amendment generally prohibits government restrictions on speech based on content and point of view, but allows private companies to say and broadcast whatever they wish.
in a recent Supreme Court brief, Texas lawyers said the challenged law does not affect the platforms’ free speech rights because “no reasonable viewer could attribute what a user says to the platforms themselves.” The brief added: “Given the virtually unlimited capacity of platforms to transport content, requiring them to provide users with equal access regardless of their point of view will do nothing to displace the platforms’ own speech.”
In a brief previous, the state’s attorneys wrote that “the platforms are 21st-century descendants of telegraph and telephone companies: that is, traditional common carriers.” That means, they wrote, that companies must generally accept all customers.
The Biden administration submitted a document in August urging judges to hear the cases: Moody v. NetChoiceNo. 22-277, and NetChoice v. PaxtonNo. 22-555 – and rule in favor of the companies.
“When a social media platform selects, edits, and curates third-party speech for presentation to the public, it engages in activity protected by the First Amendment,” Attorney General Elizabeth B. Prelogar wrote for the administration, adding that “the act of Selecting and curating the content that users see is inherently expressive, even if the speech that is collected comes almost entirely from users.”
