Supreme Court grapples with Texas, Florida social media laws

The Supreme Court on Monday appeared conflicted over far-reaching social media laws in Texas and Florida aiming to control how platforms moderate content — particularly ones that are political in nature.

The justices invoked everything from how the law could impact the handmade craft online marketplace Etsy, and whether Google-owned Gmail could delete the accounts of Tucker Carlson or Rachel Maddow, in arguments that spanned nearly four hours.

The justices signaled unease with handing the two states the right to control which speech social media platforms host, sharply questioning the practical application of the laws and the broad reach they could have.

But the high court, with its conservative majority, also raised concerns about regulating powerful companies and gave indications they may not block the state laws in full.

The laws, which seek to bar platforms from banning users because of their political views, were passed in 2021 amid Republican backlash over bans and suspensions of conservative figures who violated the platforms’ policies. If allowed to stand, they could transform free speech in the digital age.

The laws were spurred in part by outrage following former President Trump’s blocking from Twitter, now known as X, and Meta, the parent company of Facebook and Instagram, after the Jan. 6, 2021, Capitol attack. Trump regained access to X under Elon Musk’s leadership and rebranding  in November 2022, and Meta lifted its ban on the former president last January.

Justice Elena Kagan used the changes to X to press Florida Solicitor General Henry Whitaker on how the companies express editorial control in their content moderation methods.

“Twitter users one day woke up and found themselves to be X users and the content rules had changed and their feeds changed and all of a sudden they’re getting a different online newspaper, so to speak, in a metaphorical sense, every morning,” she said.

While reviewing the Florida law, Justice Samuel Alito asked Paul Clement, a lawyer for the tech industry groups, if it could cover Gmail, the email platform operated by Google. Clement said the Florida law indeed could.

“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 said Gmail “might be able to do that” but it is not in the “square focus of this litigation.”

He added that if the statute did apply to Gmail, as a service provided by Google, it also raises concerns about how competing email providers are regulated.

Although the states argued the laws are crafted in a way to apply to major social media platforms, questions were raised about how they may impact a range of internet companies, including Gmail, Etsy and Uber.

“This is such an odd case for our usual jurisprudence,” Justice Sonia Sotomayor said while questioning Florida’s solicitor general. “It seems like your law is covering just about every social media platform on the internet.”

Small and midsized tech companies that are often on opposing sides of issues that target tech giants, filed amicus briefs to the court in support of NetChoice and the Computer and Communications Industry Association’s (CCIA) case, arguing it could disproportionately impact them.

Conflicting rulings in federal appeals courts have left the decision about the laws’ constitutionality up to the justices.

The U.S. Court of Appeals for the 11th Circuit sided with NetChoice and CCIA, the tech industry groups that challenged the legislation, and upheld a block on major provisions of the Florida law. The U.S. Court of Appeals for the 5th Circuit aligned with the state of Texas.

The laws aren’t identical. The Florida law says political candidates cannot be deplatformed, while in Texas, the law bars platforms from removing content based on users’ viewpoints.

Questions over purported censorship quickly slipped into the debate.

Whitaker argued in his opening remarks that the First Amendment is designed to “prevent the suppression of speech, not to enable it.” But Justice Brett Kavanaugh sharply pushed back on the implication that the companies are not themselves protected from government overreach.

“You left out what I understand to be three key words in the First Amendment, or to describe the First Amendment: ‘by the government,’” Kavanaugh said. “Do you agree ‘by the government’ is what the First Amendment is targeting?”

Alito later quipped that deeming what he called “censorship” as “content moderation” lends into an “Orwellian temptation to recategorize offensive conduct in seemingly bland terms.”

Justices across the ideological spectrum interrogated the potential chilling effect both laws could have on social media platforms’ editorial judgment.

Clement argued that if social media companies were blocked from moderating at their discretion, the ugliest content — like hate speech and misinformation — would rear its head.

In the case of the Texas law, being “viewpoint-neutral” would force the companies to open the floodgates, he said.

“That means that if you have materials that are involved in suicide prevention, you also have to have materials that advocate suicide promotion, or, if you have materials on your site that are pro-semitic, then you have to let on materials onto your site that are antisemitic,” he said. “And that is a formula for making these websites very unpopular to both users and advertisers.”

He also said that social media platforms should be treated more like publishers — like newspapers — than “common carriers,” enterprises that transport goods for a fee but are open to the public.

Probing Whitaker on the issue, Justice Amy Coney Barrett said that, when it comes to traditional social media platforms, “it all turns on editorial control.”

“These social media companies are hosting speech,” Barrett said. “So why isn’t that more like a newspaper?”

Unlike newspapers, Whitaker countered, social media companies don’t review every piece of content that appears on their platform.

“It is a strange kind of editor, your honor, that does not actually look at the material that is going on its compilation,” Whitaker said.

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