Justices cast doubt in two speech cases

Laws targeting social media get Supreme Court scrutiny

The Guardian of Law scuplture is seen at the west entrance of the Supreme Court on Thursday, Feb. 22, 2024, in Washington. (AP Photo/Mark Schiefelbein)
The Guardian of Law scuplture is seen at the west entrance of the Supreme Court on Thursday, Feb. 22, 2024, in Washington. (AP Photo/Mark Schiefelbein)

WASHINGTON -- The Supreme Court cast doubt Monday on state laws that could affect how Facebook, TikTok, X (formerly Twitter), YouTube and other social media platforms regulate content posted by their users. The cases are among several this term in which the justices could set standards for free speech in the digital age.

The laws were enacted in an effort to shield conservative voices on the sites, but a decision by the court, expected by June, will almost certainly be its most important statement on the scope of the First Amendment in the internet era, with broad political and economic implications.

A ruling that tech platforms have no editorial discretion to decide which posts to allow would expose users to a greater variety of viewpoints but almost certainly amplify the ugliest aspects of the digital age, including hate speech and disinformation.

In nearly four hours of arguments, several justices questioned aspects of laws adopted by Republican-dominated legislatures and signed by Republican governors in Florida and Texas in 2021. But they seemed wary of a broad ruling, with Justice Amy Coney Barrett warning of "land mines" she and her colleagues need to avoid in resolving the two cases.

While the details vary, both laws aimed to address conservative complaints that the social media companies were liberal-leaning and censored users based on their viewpoints, especially on the political right.

Differences on the court Wednesday emerged over how to think about the platforms -- as akin to newspapers that have broad free-speech protections, or telephone companies, known as common carriers that are susceptible to broader regulation.

Chief Justice John Roberts suggested he was in the former camp, saying early in the session, "And I wonder, since we're talking about the First Amendment, whether our first concern should be with the state regulating what we have called the modern public square?"

Henry C. Whitaker, Florida's solicitor general, responded that "the state has an interest, a First Amendment interest, in promoting and ensuring the free dissemination of ideas."

Several justices said that the states violated the First Amendment by telling a handful of major platforms that they could not moderate their users' posts, drawing distinctions between government censorship prohibited by the First Amendment and actions by private companies to determine what speech to include on their sites.

"I have a problem with laws that are so broad that they stifle speech just on their face," Justice Sonia Sotomayor said.

Justice Brett Kavanaugh read a sentence from a 1976 campaign finance decision that has long been a touchstone for him. "The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment," he said, indicating that he rejected the states' argument that they may regulate the fairness of public debate in private settings.

Justice Elena Kagan said the major platforms had good reasons to reject posts inciting insurrection, endangering public health and spreading hate speech. "Why isn't that a First Amendment judgment?" she asked.

Justices Samuel Alito and Clarence Thomas appeared most ready to embrace arguments made by lawyers for the states. Thomas raised the idea that the companies are seeking constitutional protection for "censoring other speech."

Alito complained about the term "content moderation" that the sites employ to keep material off their platforms.

"Is it anything more than a euphemism for censorship?" he asked, later musing that term struck him as Orwellian.

But Kavanaugh, seemingly more favorable to the companies, took issue with calling the actions of private companies censorship, a term he said should be reserved for restrictions imposed by the government.

"When I think of Orwellian, I think of the state, not the private sector, not private individuals," Kavanaugh said.

CONTOURS NOT CLEAR

The precise contours of rulings in the two cases were not clear after arguments, although it seemed likely the court would not let the laws take effect. The justices posed questions about how the laws might affect businesses that are not the primary targets of the laws, including e-commerce sites like Uber and Etsy and email and messaging services.

When the discussion turned to less prominent sites, the justices across the ideological spectrum were troubled by the lack of information about them in the record before the court. Several indicated that they might analyze the First Amendment question differently depending on the platform.

Kagan asked whether states could tell services like Venmo, Dropbox and Uber that they may not discriminate on the basis of their users' viewpoints.

"Wouldn't that be all right?" she asked Paul D. Clement, a lawyer for the challengers.

Clement said no, responding that all of those services "are still in the expressive business," meaning that speech is part of their core activities in ways not true of, say, a gas station or ice cream stand.

Other justices asked about email and messaging services.

"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?" Alito asked Clement.

Clement responded that the service "might be able to do that," adding that such questions had not been the focus of the litigation.

He added that forbidding the platforms to make distinctions based on viewpoint would destroy their businesses.

TWO LAWS IN DETAIL

The Florida and Texas laws were passed in the months following decisions by Facebook and Twitter, now X, to cut former President Donald Trump off over his posts related to the Jan. 6 riot at the U.S. Capitol by his supporters.

Trade associations representing the companies sued in federal court, claiming that the laws violated the platforms' speech rights. One federal appeal struck down Florida's statute, while another upheld the Texas law. But both are on hold pending the outcome at the Supreme Court.

The laws differ in their details. Florida's prevents the platforms from permanently barring candidates for political office in the state, while Texas' prohibits the platforms from removing any content based on a user's viewpoint.

"To generalize just a bit," Judge Andrew S. Oldham wrote in a decision upholding the Texas law, the Florida law "prohibits all censorship of some speakers," while the one from Texas "prohibits some censorship of all speakers" when based on the views they express.

The two trade associations challenging the state laws -- NetChoice and the Computer & Communications Industry Association -- said that the actions Oldham called censorship were editorial choices protected by the First Amendment, which generally prohibits government restrictions on speech based on content and viewpoint.

The groups said that social media companies were entitled to the same constitutional protections enjoyed by newspapers, which are generally free to publish what they like without government interference.

Kavanaugh appeared to embrace that position, asking Whitaker, the lawyer representing Florida, whether states could tell publishing houses, printing presses, movie theaters, bookstores and newsstands what to feature.

Whitaker said that newspapers and bookstores are engaged in "inherently expressive conduct," while "our whole point is that these social media platforms are not like those."

He said that, indeed, the platforms were common carriers required to transmit everyone's messages and that the Florida law protected free speech by ensuring that users have access to many points of view.

Several justices said it was hard to reconcile the platforms' arguments Monday with what they had said last year in cases concerning Section 230 of the Communications Decency Act, which protects social media companies from liability for what their users post.

In those cases, Thomas said, the platforms maintained that they were merely conduits for others' speech. "Now you're saying that you are engaged in editorial discretion and expressive conduct," he told Clement. "Doesn't that seem to undermine your Section 230 arguments?"

Clement responded that a key part of the provision was meant to protect platforms from liability for making editorial judgments.

'PROTECTION AGAINST ELITES'

In a statement when he signed the bill into law, Florida Gov. Ron DeSantis said the measure would be "protection against the Silicon Valley elites."

When Gov. Greg Abbott signed the Texas law, he said that it was needed to protect free speech in what he termed the new public square. Social media platforms "are a place for healthy public debate where information should be able to flow freely -- but there is a dangerous movement by social media companies to silence conservative viewpoints and ideas. That is wrong, and we will not allow it in Texas," Abbott said.

The Biden administration is siding with the challengers. Lawyers for Trump have filed a brief in the Florida case urging the court to uphold the state law.

Still, Solicitor General Elizabeth Prelogar, the administration's top Supreme Court lawyer, cautioned the court to seek a narrow ruling that blocked the laws. Prelogar said governments maintain the ability to impose regulations to ensure competition, preserve data privacy and protect consumer interests.

Several academics and privacy advocacy groups told the court that they view the laws at issue in these cases as unconstitutional, but want the justices to preserve the government's ability to regulate social media companies to some extent.

Information for this article was contributed by Mark Sherman of The Associated Press and by Adam Liptak of The New York Times.

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