In nearly four hours of arguments, several justices questioned aspects of laws adopted by Republican-dominated legislatures and signed by Republican governors in Florida and Texas in 2021. But they appeared wary of a broad ruling, with Justice Amy Coney Barrett which warned of “land mines” she and her colleagues must avoid to solve the two cases.
While the details vary, both laws aimed to address conservative complaints that social media companies were liberal in orientation and censored users based on their viewpoints, particularly right-wing political ones.
Differences have emerged in the courts over how to treat platforms, such as newspapers that enjoy broad free speech protections, or phone companies, known as common carriers, that are susceptible to broader regulation.
Chief Justice John Roberts suggested he belonged to the former camp, saying at the start of the session: “And I wonder, since we’re talking about the First Amendment, whether our first concern should be with the state regulating what it we called the modern audience.” square?”
Justices Samuel Alito and Clarence Thomas appeared more ready to embrace the arguments advanced by the states’ lawyers. Thomas raised the idea that companies are seeking constitutional protection to “censor other speech.”
Alito complained about the term “content moderation” that sites use to keep material off their platforms.
“Is this more than a euphemism for censorship?” he asked, later reflecting that the term seemed Orwellian to him.
But Justice Brett Kavanaugh, apparently more pro-corporate, took issue with the definition of censorship over the actions of private companies, a term he said should be reserved for government-imposed restrictions.
“When I think Orwellian, I think state, not private sector, not private individuals,” Kavanaugh said.
The precise contours of the sentences in the two cases were unclear after arguments, although it seemed likely that the court would not let the laws take effect. The justices asked questions about how the laws might affect companies that are not their primary targets, including e-commerce sites like Uber and Etsy and email and messaging services.
The cases are among many that judges have grappled with over the past year involving social media platforms. Next month, the court will hear an appeal filed by Louisiana, Missouri and other parties accusing administration officials of pressuring social media companies to silence conservative views. Two other cases awaiting decision concern whether public officials should block critics from commenting on their social media accounts, an issue that previously arose in a case involving then-President Donald Trump. The court dismissed Trump’s case when his presidential term ended in January 2021.
The Florida and Texas laws were passed in the months after Facebook and Twitter, now X, decided to shut down Trump for his posts related to the January 6, 2021 attack on the US Capitol by his supporters.
Trade associations representing the companies sued in federal court, arguing that the laws violated the platforms’ speech rights. One federal appeal struck down the Florida statute, while another upheld the Texas law. But both are awaiting the outcome of the Supreme Court.
In a statement when he signed the bill, Florida Governor Ron DeSantis said the measure would be “protection against Silicon Valley elites.”
When Gov. Greg Abbott signed the Texas law, he said it was needed to protect free speech in what he called the new public square. Social media platforms “are a place for healthy public debate where information should be able to flow freely, but there is a dangerous movement by social media companies to silence conservative views and ideas. This is wrong and we will not allow it in Texas,” Abbott said.
But a lot has changed since then. Elon Musk bought Twitter and, in addition to changing its name, eliminated teams focused on content moderation, welcomed back many users previously banned for hate speech and used the site to spread conspiracy theories.
The Biden administration sides with the challengers. Trump’s lawyers filed a brief in the Florida case urging the court to respect state law.
However, Attorney General Elizabeth Prelogar, the administration’s top Supreme Court lawyer, warned the court to seek a restrictive ruling blocking the laws. Prelogar said governments retain the ability to impose regulations to ensure competition, preserve data privacy and protect consumer interests.
Several academics and privacy advocacy groups have told the court they view the laws at issue in these cases as unconstitutional, but want the justices to preserve the government’s ability to regulate social media companies to some extent.