Supreme Court Considers Whether Social Media Platforms Can Be Restricted In How They Moderate Their Content

The Supreme Court this morning in hearing oral arguments in two cases that could shape the future of social media platforms.

Justices are weighing the constitutionality of Florida and Texas laws that place restrictions on how Facebook, X/Twitter, Instagram and other social media platforms moderate their content.

The laws, championed by right-leaning state lawmakers, are rooted in the idea that the tech platforms have had a bias against conservatives. They’ve long lambasted social media practices that limited the reach of certain accounts, while tech companies have denied that they are discriminating against certain types of political speech. Meta, Google and other tech giants, which have restricted accounts that traffic in misinformation on Covid-19 and election integrity, as well as hate speech, say that the laws violate the First Amendment.

The decision by Twitter, Facebook and YouTube to suspend Donald Trump‘s accounts after the January 6th attack on the Capitol gave fuel to the move to pass the state laws. His accounts have since been restored.

The Florida law prohibits platforms from banning or suspending the accounts of candidates for public office. It also prohibits the restriction of accounts engaged in “journalistic enterprise.” The Texas law prohibits social media platforms from taking down content that is based on a viewpoint. Both laws allow users to sue the platforms for damages. They also require that platforms disclose their content moderation decisions.

The states have defended the laws, contending that the platforms are acting as a public square and should not be able to have ultimate authority to determine what users see and cannot see. Ultimately, the argument is that the platforms act as something akin to a utility, i.e. the phone company, which doesn’t place restrictions on the content being transmitted over their lines.

Trade groups for social media platforms, however, say that the laws infringe on the First Amendment rights to determine what should be allowed on their platforms. They warn that the situation is little different from the government requiring a traditional media company, like The New York Times or Fox News, to distribute certain content.

Joe Biden’s administration filed a friend-of-the-court brief siding with tech companies.

A Florida federal appeals court concluded that parts of the Florida law likely violated the First Amendment, conflicting with a ruling by a Texas panel. That set the case up for today’s showdown in the Supreme Court.

The Reporters Committee for the Freedom of the Press argued in a brief that in these cases, Texas and Florida would undermine the First Amendment’s safeguards for editorial independence to commandeer the audiences of a handful of large online platforms that, in their view, make unfair or unwise—or even worse, biased—judgments about the speech that deserves to be shared with their users.”

“While the States have chosen to target certain new digital platforms today, they have yet to distinguish the expressive judgments their statutes target from the ones made daily by a litany of other speakers, from the traditional press to Hollywood studios.”