UPDATE: Supreme Court justices have been grappling all morning on the question of whether social media platforms are neutral gatekeepers, or whether their content moderation practices count as expressive activity protected by the First Amendment.
The justices raised a series of questions over the broadness of the Florida law, which restricts the content moderation practices of tech platforms. Some of the justices were skeptical of the law when it came to content decisions, but also wondered whether why it should not apply to the activity of Etsy or Uber.
Paul Clement, attorney representing the industry group NetChoice, offered the court a prediction of what will happen if the Florida law were allowed to stand.
“What some of these companies might do is say, ‘Let’s just do puppy dogs in Florida,’” Clement said, suggesting that platforms would default to featuring only non-controversial content “so no one can say we are not being consistent.”
Justice Ketanji Brown Jackson asked Clement about concerns that social media platforms are now the public square. Champions of the Florida and Texas laws argue that Facebook, YouTube and Twitter serve that function, and therefore can’t discriminate in the type of content posted on their sites.
Clement held to his argument that the First Amendment prohibits the government from restricting speech, not private entities. He said that “censorship is only something the government can do to you.” He also said that this is not a case where platforms had some “bottleneck control,” distinguishing it from a Supreme Court ruling that required cable companies to carry broadcast channels.
But there were some signals that the justices weren’t ready to invalidate the entire law on First Amendment grounds. Justice Samuel Alito asked Clement, “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?”
Clement said that “they might be able to that” but said that it “had not been the square focus of this litigation.”
PREVIOUSLY: The Supreme Court this morning is 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.”
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