Supreme Court justices appear skeptical of Texas and Florida social media laws
The Supreme Court wrestled Monday with a pair of cases that could help define the future of the Internet.
Legal experts say they're the most important First Amendment cases in a generation. The question is whether states like Florida and Texas can force big social media platforms to carry content the platforms find hateful or objectionable.
"I wonder, since we're talking about the First Amendment, whether our first concern should be with the state regulating what, you know, we have called the modern public square?" asked Chief Justice John Roberts.
Later, in the hours-long arguments, Roberts returned to the point of government control, arguing that states and private actors are inherently different when it comes to First Amendment analysis.
He and several other justices seemed to side with a key argument from the social media platforms: that decades of free speech jurisprudence mean government officials cannot compel people or businesses, including social media giants, to speak.
"There is nothing more Orwellian than the government trying to dictate what viewpoints are distributed in the name of free expression," said Matt Schruers, president of the Computer & Communications Industry Association, a trade group for the social media companies that's involved in the litigation. "And that's what's at issue in this case."
After the violent siege on the U.S. Capitol in 2021, big social media sites booted former President Donald Trump from their platforms, fearing his posts could provoke more unrest.
Republicans in Florida and Texas took action, signing sweeping laws that prevent the largest platforms from banning users based on their political viewpoints and require them to provide an individual explanation to users about why their posts have been edited or removed.
"Freedom of speech is under attack in Texas," declared Texas Republican Gov. Greg Abbott at the bill signing. "There is a dangerous movement by some social media companies to silence conservative ideas and values. This is wrong and we will not allow it in Texas."
A separate law in Florida prevents the social media platforms from rapidly changing their terms of service and threatens huge financial penalties.
The social media companies sued. Schruers, who leads the industry trade group, said the state laws interfere with how the companies operate, from their basic policies to editing, deleting or adjusting posts, across all content.
"It is necessary to have guidelines and terms of use to make sure that a community isn't polluted," Schruers said. "And that's everything from posting dog pictures in the cat forum to barbeque in the vegan forum to far more serious things like trying to groom children in a children's site."
At the Supreme Court Monday, attorney Paul Clement added another colorful example, to laughter from the audience: that a Catholic site should not be forced to give voice to a "notorious Protestant."
Clement said were the state laws to stand, it would lead to massive disruptions for the platforms and even, in the interim, make them consider hosting nothing but content about puppies for its users in Florida.
The states' arguments
In court papers, lawyers for Texas and Florida said the social media platforms are discriminating against conservative views.
John Whitehead runs the Rutherford Institute, a conservative-leaning nonprofit group. Whitehead, who filed a friend-of-the-court brief in the cases, said the big social media sites have become the center of people's lives and they should not be engaging in any censorship.
"It's out there to make people think," Whitehead said. "In other words, you can disagree. If someone puts something foolish on, let's say, Facebook, people should respond immediately and start a debate. Debating is the key, not eliminating."
Other allies of Texas and Florida argue the sites are merely hosting content, not making editorial judgments that deserve lots of First Amendment protection.
"The platforms do not have a First Amendment right to apply their censorship
policies in an inconsistent manner and to censor and deplatform certain users," Florida Solicitor General Henry Whitaker told the justices Monday.
Carl Szabo is general counsel of NetChoice, another big trade group for social media platforms that's involved in these lawsuits.
"These cases are going to define the future of the Internet," Szabo said.
At stake, he said, is who controls what people hear, say and read online.
"Everyone, left right or center, should oppose government control of speech," Szabo said. "Because as it may be your person in the White House today, we know that that will not be forever. And that's why the First Amendment is so important and so paramount."
What the justices will have to decide
The justices will have to decide between radically different conceptions of what social media is. Are these platforms more like old-time phone companies: basically, open to everyone without filtering?
Or, are they more like bookstores and newspapers, places that edit and curate information, that get the highest level of First Amendment protection?
The social media giants are relying in part on a 1974 Supreme Court case, Miami Herald v. Tornillo. Florida tried to force the newspaper to carry op-eds it didn't want to publish. The high court sided with the Herald back then.
Today, the social media sites said, Florida is trying to make the big social media platforms print every single letter to the editor. Users don't want that and neither do advertisers, they said.
Justice Samuel Alito seemed to wrestle with those precedents, saying modern social media doesn't quite fit either mold.
The justices also struggled with the broad sweep of Florida's law, wondering if sites like Uber, Etsy and Venmo might be covered under its provisions and how that might change the free speech analysis in front of them.
Solicitor General Elizabeth Prelogar advised the justices to rule narrowly, focusing only on the biggest social media sites and how they are burdened by the Florida and Texas laws, and to leave those thorny issues about other platforms for another case and another day.
Support for the tech companies
The two trade associations — NetChoice and CCIA — are backed by groups across the political spectrum, from the U.S. Chamber of Commerce and Americans For Prosperity, which is linked to Charles Koch, to the American Civil Liberties Union.
A bipartisan group of national security experts weighed in, too. Rupa Bhattacharyya is a former Justice Department lawyer and special master for the September 11th Victim Compensation Fund. She now works at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center.
"Social media content moderation plays a really important role in keeping some of the worst of the hate and the violence off of the Internet," Bhattacharyya said.
Home-grown extremists like the Proud Boys and foreign groups like the Islamic State have deployed social media to attract converts and broadcast violence. The Christchurch mosque shooter in New Zealand live-streamed his activities, to try to inspire others, she added.
Bhattacharyya said social media platforms should face common-sense regulations, including consumer protection and anti-fraud laws. And the current content moderation policies of some of the big sites have real flaws.
But Bhattacharyya said, "They are better than nothing."
And she said nothing — no content moderation at all — is what will happen if the Supreme Court upholds the sweeping laws in Texas and Florida.
Volunteer moderators of a Reddit site devoted to law and the Supreme Court filed their own brief in the cases to deliver a very particular message.
Their court papers cited hateful speech and threats against the justices. Moderators said they delete those things now. But under the state laws, they might face lawsuits for yanking "trolls" who flood their chats with vulgar and racist posts.
The state laws are not about protecting speech, the moderators wrote. Instead, they're commandeering someone else's microphone to spread a message.
NPR Legal Intern Elissa Harwood contributed to this report.
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Transcript
ARI SHAPIRO, HOST:
The First Amendment was back at the Supreme Court today. At issue was free speech on big social media platforms. Social media companies sued Texas and Florida over state laws that limit the sites' ability to moderate content. How the justices rule could change the way these platforms operate. NPR justice correspondent Carrie Johnson watched the arguments at the court, and she is here now in the studio. Hey, Carrie.
CARRIE JOHNSON, BYLINE: Hi, Ari.
SHAPIRO: Tell us about how these laws in Florida and Texas came to be.
JOHNSON: State officials in Texas and Florida said these big sites had been silencing conservative voices. They passed these laws after former President Donald Trump was kicked off several platforms following the violence at the Capitol on January 6, 2021. And these laws bar the big platforms from discriminating against people because of their viewpoint. They also require sites to give individual explanations for blocking or booting people. Attorney Henry Whitaker argued for the Florida law. He said these social media platforms only act on a tiny part of the material they host on their sites. Then Justice Elena Kagan jumped in.
(SOUNDBITE OF ARCHIVED RECORDING)
ELENA KAGAN: You know, the 1% that's like, we don't want anti-vaxxers on our site...
HENRY WHITAKER: Sure.
KAGAN: ...Or we don't want insurrectionists on our site - I mean, that's what motivated these laws; isn't it? And that's what's getting people upset about them.
JOHNSON: Justice Kagan says the problem is there's disagreement about what constitutes misinformation about things like voting and health.
SHAPIRO: And which social media platforms are covered by these laws, and how did they respond in court today?
JOHNSON: That's actually an open question about how many sites these laws cover. It seems like YouTube, Facebook and Instagram count. But many of the justices across ideological lines really struggled with whether the driving app Uber might be included or e-commerce sites where people buy things, Venmo and, if so, how that might change their legal analysis. Attorney Paul Clement argued for the trade associations challenging these laws. He encouraged the justices to focus on the very biggest platforms and the stakes for them.
(SOUNDBITE OF ARCHIVED RECORDING)
PAUL CLEMENT: If this statute goes into effect, we sort of have to fundamentally change our business models. So, you know, what we might do in the interim - at least some of these companies might do - is, you know, just, like, let's do only puppy dogs, at least in Florida, until we can get this straightened out.
SHAPIRO: You know, Carrie, there's so much precedent for the Supreme Court ruling on the First Amendment but not a ton for social media sites and internet speech. So how deeply did the justices dig into the history here?
JOHNSON: They really did dig in. You know, the social media companies say the kind of arranging and curating they do is an editorial judgment that deserves a lot of First Amendment protection, like a newspaper does - gets. But lawyers for Florida and Texas say the big platforms are more like phone companies or like UPS. They connect calls or drop off parcels, but they don't speak themselves. Justice Samuel Alito says neither of those analogies really worked or sounded right to him. He says the internet is different than a newspaper. There's no space limit, for one thing. The social media platforms say that makes content moderation and blocking all the more important because otherwise, these platforms are going to be filled with garbage or hate speech, and users can't find what they want to see there.
SHAPIRO: The Republican-led states that pass these laws say that the social media companies engaged in a form of censorship. Did the justices engage with that idea today?
JOHNSON: There was a lot of discussion of this. Justices Clarence Thomas and Alito seemed to take issue with what the platforms call content moderation. It was kind of a euphemism for censorship, they said. But Justice Brett Kavanaugh took a really different view. He says only the government engages in censorship. When a private company decides what to include or exclude, that usually gets First Amendment protection, he said. And the chief justice, John Roberts, says it matters whether it's the government or a private business making those big decisions about content.
SHAPIRO: So in just a sentence or two, any sense of how the court might rule here?
JOHNSON: You know, they seem to be thinking out loud about how far they want to go. The laws in Florida and Texas have been blocked in an early stage - lots of questions about how these laws might work in practice for some of the smaller social media platforms. But the solicitor general encouraged the justices to leave that for another day and another case, not this one.
SHAPIRO: That's NPR's Carrie Johnson. Thank you.
JOHNSON: My pleasure. Transcript provided by NPR, Copyright NPR.
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