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WASHINGTON — The U.S. Supreme Court on Monday appeared torn over whether to let Republican-backed laws in Florida and Texas take effect despite concerns that they restrict the ability of social media platforms to curb content these companies deem objectionable.
During nearly four hours of arguments over the legality of both laws, many of the nine justices expressed concern that the measures would undermine the editorial judgments of the platforms. Some of the justices also said the laws could legally apply to some non-expressive internet services, such as the provision of email, direct messaging or car sharing.
At issue was whether these 2021 state laws regulating content-moderation practices by large social media platforms — born of Republican concerns about alleged bias against conservative voices — violate the free speech protections for the companies under the U.S. Constitution's First Amendment.
Lower courts split on the issue, blocking key provisions of Florida's law while upholding the Texas measure. The Supreme Court previously blocked the Texas law while litigation played out at a lower court.
Conservative Chief Justice John Roberts asked Henry Whitaker, Florida's solicitor general, about First Amendment concerns concerning "the state regulating what we have called the modern public square." Whitaker argued that First Amendment rights are not implicated because the Florida law regulates conduct, not speech or expression.
Conservative Justice Brett Kavanaugh pressed Whitaker on how to reconcile this argument with prior Supreme Court rulings that "emphasize editorial control as being fundamentally protected by the First Amendment."
The Florida and Texas laws were challenged by tech industry trade groups NetChoice and the Computer & Communications Industry Association, whose members include Facebook parent Meta Platforms, Alphabet's Google, which owns YouTube, as well as TikTok and Snapchat owner Snap.
The justices must decide whether the First Amendment protects the editorial discretion of the social media platforms and prohibits governments from forcing companies to publish content against their will. The companies have said that without such discretion — including the ability to block or remove content or users, prioritize certain posts over others, or include additional context — their websites would be overrun with spam, bullying, extremism and hate speech.
The Supreme Court has a 6-3 conservative majority.
Rulings allowing the laws to stand could lead to a patchwork of state measures governing content moderation, raising the complexity and cost of compliance for platforms.
Another issue for the justices is whether the state laws unlawfully burden the free speech rights of social media companies by requiring them to provide users with individualized explanations for certain content-moderation decisions, including the removal of posts from their platforms.
President Joe Biden's administration, which opposes the Florida and Texas laws, has argued that the content-moderation restrictions violate the First Amendment by forcing platforms to present and promote content they view as objectionable.
Officials from Florida and Texas have countered that the content-moderation actions by these companies fall outside the protection of the First Amendment because such conduct — which they deem "censorship" — is not itself speech.
Conservative critics of "Big Tech" companies have cited as an example of what they called censorship the decision by the platform previously called Twitter to suspend then-President Donald Trump shortly after the Jan. 6, 2021, attack on the U.S. Capitol by his supporters, with the company citing "the risk of further incitement of violence." Trump's account has since been reinstated under Elon Musk, who now owns the company that was renamed X.
Florida's law requires large platforms to "host some speech that they might otherwise prefer not to host" by prohibiting the censorship or banning of a political candidate or "journalistic enterprise."
The Texas law forbids social media companies with at least 50 million monthly active users from acting to "censor" users based on "viewpoint," and allows either users or the Texas attorney general to sue to enforce it.
Florida is seeking to revive its law after the Atlanta-based 11th U.S. Circuit Court of Appeals ruled largely against it. The industry groups are appealing a decision by the New Orleans-based 5th U.S. Circuit Court of Appeals upholding the Texas law, which the Supreme Court blocked at an earlier stage of the case, with liberal Justice Elena Kagan and three of the court's more conservative justices in dissent.
