The Supreme Court will hear free speech challenges to social media laws

The Supreme Court will hear arguments Monday in a pair of cases that could fundamentally change the discourse 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 by June, will almost certainly be its most important pronouncement on the scope of the First Amendment in the Internet era and will have major political and economic implications. A ruling that tech platforms such as Facebook, YouTube and TikTok do not have editorial discretion to decide what posts to allow would expose users to more viewpoints, but would almost certainly amplify the ugliest aspects of the digital age, including hate speech and misinformation.

That, 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 censorship in Silicon Valley, through which major social media companies have deleted 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.

Florida and Texas laws differ in detail. Florida prevents platforms from permanently banning candidates for state political office, while Texas’ bans platforms from removing any content based on a user’s viewpoint.

“To generalize just a little” Judge Andrew S. Oldham he wrote decision upholding the Texas lawFlorida law “prohibits everything censorship of some speakers,” while the one from Texas “bans some censorship of everything speakers” when based on the attitudes they express.

Two trade associations challenging the state laws — NetChoice and the Computer and 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 content and viewpoint.

The groups said social media companies are entitled to the same constitutional protections enjoyed by newspapers, which are largely free to publish what they want without government interference.

States responded that Internet platforms are the common carriers needed to convey everyone’s messages and that laws protect free speech by ensuring that users have access to many points of view.

In 2022, federal appellate courts reached conflicting conclusions on the constitutionality of these two laws.

A unanimous three-judge panel of the US Court of Appeals for the 11th Circuit mostly supported 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, de-prioritize content in viewer feeds or search results, or sanction violations of their community standards, they are engaging in activities protected by the First Amendment.”

But a divided three-judge panel of the Fifth Circuit reversed the order of the lower court blocks Texas law.

“We reject the platform’s attempt to carve free censorship right out of the constitutional guarantee of free speech,” Judge Oldham wrote for the majority. “Platforms are not news. Their censorship is not speech.”

The Biden administration is supporting social media companies in two cases, Moody v. NetChoiceno. 22-277 i 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 coalition of dissent. The court’s three most conservative members – Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch – filed a dissent saying they would allow the law to take effect. Justice Elena Kagan, a liberal, also dissented, though she did not join the dissent and did not state her reasons.

Justice Alito wrote that the issues were so new 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 networks have editorial discretion protected by the First Amendment in the way that newspapers and other traditional publishers do.

“It is not at all obvious,” he wrote, “how our existing precedents, which predate the Internet age, should apply to large social media companies.”

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