The Supreme Court heard oral arguments Monday on keeping in place Texas and Florida laws designed to prevent viewpoint-based censorship on social media platforms.
Florida’s law prevents companies from “deplatforming U.S. political candidates or journalistic enterprises” or censoring posts in a way that is “inconsistent and unfair.” Texas’ law prohibits platforms with over 50 million monthly U.S. users from censoring content or users based on viewpoint.
NetChoice, the internet trade group that sued the states, argued the laws violate platforms’ First Amendment rights by preventing them from exercising editorial discretion and compelling their speech by requiring them to host content. The states argued platforms are closer to common carriers like cell phone companies that transmit messages without respect to content.
The 11th Circuit Court of Appeals sided with NetChoice and blocked Florida’s law, but the Fifth Circuit Court of Appeals upheld Texas’ law, arguing corporations do not “have a freewheeling First Amendment right to censor what people say.”
Though multiple justices appeared skeptical the government can compel Twitter and Facebook to host content that violates their terms of service, most seemed to agree there were some applications of the law that could be permissible, like preventing viewpoint-discrimination in Gmail or direct messaging functions on various platforms.
“Does Gmail have a First Amendment right to delete, let’s say, Tucker Carlson’s or Rachel Maddow’s Gmail accounts if they don’t agree with his or her viewpoints?” Justice Samuel Alito asked.
“They might be able to do that, your honor,” Paul Clement, the attorney arguing for NetChoice, said.
Justice Sonia Sotomayor pointed out it was an “odd case” as Florida’s law covers “almost everything.”
“It seems like your law is covering just about every social media platform on the Internet, and we have amici who are not traditional social media platforms, like smartphones and others who have submitted amici brief, telling them that readings of this law could cover them,” she said, pointing to potential applications on Etsy.
Other justices brought up situations where the law could apply to Uber and WhatsApp.
NetChoice maintained the position that the law is unconstitutional in all of its applications, forcing the justices unclear on how they should address these various scenarios.
But on the central issue — censorship on big platforms like Facebook and Twitter — the justices seemed split.
Justice Brett Kavanaugh raised concerns about “government-mandated” fairness.
“In your opening remarks, you said the design of the First Amendment is to prevent ‘suppression of speech,’” he told Whitaker. “And you left out what I understand to be three key words in the First Amendment, or to describe the First Amendment — ‘by the government.’”
The argument is now over in the social media case. It was fascinating and the justices were outstanding. The problem for the company is that it went forward on a facial challenge alone. That allows for an exit option since justices on the left and the right felt that there were…
— Jonathan Turley (@JonathanTurley) February 26, 2024
Alito pressed on the definition of “content moderation” that platforms argue is their right.
“Is it anything more than a euphemism for censorship?” he asked.
“If the government is doing it, then content moderation might be a euphemism for censorship,” Clement said. “If a private party is doing it, content moderation is a euphemism for editorial discretion. There is a fundamental difference between the two.”
Justice Clarence Thomas asked Clement to provide “one example of a case in which we have said the First Amendment protects the right to censor.”
He later pressed whether the same conduct, if done by the government, would be considered government speech. In March, the Supreme Court will hear a separate First Amendment case considering the Biden administration’s coordinating with social media companies to remove content.
Justice Ketanji Brown Jackson also questioned NetChoice’s “private versus public distinction.”
“But what do you do with the fact that now, today, the Internet is the public square?” she asked. “And I appreciate that these companies are private companies, but if the speech now is occurring in this environment, why wouldn’t the same concerns about censorship apply?”
