The United States Supreme Court heard oral arguments Monday morning in a pair of cases concerning the constitutionality of laws in Florida and Texas prohibiting social media platforms from censoring users’ content.
Throughout the nearly four hours worth of proceedings, the Justices appeared skeptical of the states’ authority to regulate social media platforms’ content moderation policies.
Questions related to the laws’ scope, applicability, and intersection with existing law suggested the Justices may be considering a more nuanced interpretation of these provisions. The possibility of sending the case back down to a lower court for further fact finding was also raised by the Justices.
At the heart of both cases considered Monday was a disagreement over whether or not a social media platform’s exercise of editorial judgement over users’ posts constitutes a form of speech that is protected by the First Amendment.
The social media companies represented in Monday’s proceedings argued that they have a First Amendment right to exercise editorial discretion over the content that is posted on their platforms.
Texas and Florida, on the other hand, contended that editorial discretion does not constitute a form of protected free speech, arguing instead that the platforms operate as a “common carrier” — private entities that control a market and provide a public service — and therefore can be prohibited from engaging in “censorship” and “discrimination.”
NetChoice and the Computer & Communications Industry Association — parties in both of these cases, referred to jointly as NetChoice — are trade associations that represent social media companies like Facebook, Twitter, Google (which owns YouTube), and TikTok.
Following a district court decision in favor of NetChoice — and a subsequent affirmation from the U.S. Court of Appeals for the Eleventh Circuit — Florida Attorney General Ashley Moody petitioned the Supreme Court to review the case, a request it granted on September 29.
In Texas, the U.S. Court of Appeals for the Fifth Circuit reversed a lower court’s ruling in favor of NetChoice, instead siding with Texas Attorney General Ken Paxton. In response, NetChoice asked the Supreme Court to review the case and was also granted cert on September 29.
Both in Texas and Florida, lawmakers approved legislation several years ago that restricted social media companies’ discretion in regulating the content that users post on their platforms, as well as required that the companies provide users with detailed content moderation policies.
The passage of these bills kicked off the set of legal battles that have now wound their way up to the Supreme Court.
At the center of Monday’s proceedings was the question of whether or not Texas and Florida’s “content-moderation restrictions comply with the First Amendment.”
Arguing on behalf of NetChoice in both of today’s cases was attorney Paul Clement. U.S. Solicitor General Elizabeth Prelogar also participated in Monday’s proceedings. Representing the states before the Court were Flordia Solicitor General Henry Whitaker and Texas Solicitor General Aaron Nielson.
Both of the challenges brought by NetChoice against these laws were “facial,” meaning that they suggested that the Texas and Florida statutes are void because they are unconstitutional as written and in all circumstances, as opposed to how they apply to a particular context.
Although the two cases argued Monday were closely linked, they were not identical. One key distinction between the Florida and Texas laws that the Justices identified were their scope.
While the Florida law could arguably be understood as applying to websites not traditionally understood as social media platforms — like Etsy — the Texas law is more narrowly construed in its application.
Questions were raised by the Justices during Monday’s proceedings about the applicability and constitutionality of these laws with relation to the various functions of each platform — such as the availability of both public posting and private messaging on many social media sites.
Justice Sonia Sotomayor suggested the possibility that because these types of functions are included under these laws, “some of those provisions might be okay for those functions.”
When NetChoice was asked by Justice Samuel Alito if, according to their argument, platforms have the right to “discriminate on the basis of viewpoint in the provision of email services or in allowing direct messages,” their attorney did not necessarily give a clear response.
The United States Solicitor General, on the hand, explicitly argued that email and direct messages ought to be understood separately from public social media posts.
“We would likely to put those in the box of phone companies, telegraph companies and internet service providers,” she said. “We don’t think that’s an inherently expressive product in the same way as the main website.”
Section 230 — a federal law allowing online platforms to restrict “objectionable” content in “good faith” without becoming subject to the liabilities of the “publisher or speaker of any information” — also played a role in Monday’s arguments.
Justice Alito said that he doesn’t “understand the rational for 230 if it wasn’t that you can’t be held responsible for” content posted on social media platforms because “this is really not your message.”
“Either it’s your message or it’s not your message,” Alito said. “I don’t understand how it can be both. It’s your message when you want to escape state regulation, but it’s not your message when you want to escape liability under state tort law.”
In response, NetChoice likened a social media platform’s role to that of an anthology editor’s, suggesting that both the editor and the individual authors can be understood as sharing a message without confusing the work of one for that of the other.
NetChoice then argued that this is where Section 230 is intended to intervene, as it gives them the ability to “weed out of the anthologies” problematic content without losing their immunity.
Solicitor General Whitaker also spoke to this issue during his opening remarks, arguing that social media companies had “market[ed] themselves as neutral forums for free speech,” but “now that they host the communications of billions of users, they sing a very different tune.”
As of now, it is not clear when the Justices will release their opinion for these cases, but all opinions are typically handed down before the Court recesses for the summer.
According to the Supreme Court’s website, unanimous decisions are typically released quickly, while those that generate a number of dissenting and concurring opinions may not be released until the last day of the term.
Click Here to Listen to the Oral Arguments for Moody v. NetChoice and Click Here to Listen to the Oral Arguments in NetChoice v. Paxton
