April 24, 2024

The U.S. Supreme Court is preparing to hear major social media cases


The U.S. Supreme Court is about to make a crucial decision about what Americans can see on social media as it hears two cases this week that could transform the internet as we know it.

On Monday, the court will consider arguments on whether Texas and Florida should gain significantly more control over social media platforms and their content, highlighting the central role these services now play in modern American life.

The crux of the matter: can these platforms decide for themselves what content goes on their sites – and what can be removed?

The states want to prevent Facebook, TikTok, YouTube and others from removing users’ posts — possibly even posts that promote hate speech or eating disorders, lie to voters about elections and more. But that pressure goes against the First Amendment.

A ruling for the states could even change the way Americans hear about the upcoming 2024 election, from Instagram to X and beyond.

Officials from Texas and Florida argue that their laws imposing restrictions on content moderation are constitutional because they seek to regulate the business conduct of social media platforms, not their speech. But opponents, including NetChoice, an industry group that is suing to block both laws, say they infringe on the platforms’ own First Amendment rights and that their scale could lead to massive unintended consequences.

For example, a group of political scientists told the court that the laws effectively require platforms to treat “dangerous and violent election-related speech” the same as innocuous speech and do not give social media platforms sufficient discretion to moderate threats against election officials.

Monday’s showdown at the Supreme Court NetChoice vs. Paxton And Moody to NetChoice will determine whether states can ban social media companies from blocking or removing user content that violates platform rules.

The state laws in question also allow individuals to sue tech companies for alleged violations.

The Florida and Texas laws are broadly written, but officials from both states say the laws will stop social media sites from unfairly silencing conservatives. Social media platforms have been emphasizing for years that they do not discriminate against right-wing expressions.

Florida’s SB 7072, signed in 2021 by Governor Ron DeSantis, prohibits tech platforms from suspending or banning the accounts of political candidates in the state, with violations carrying steep fines of up to $250,000 per day. It also allows individual social media users to sue platforms if they believe they have been unfairly censored or “deplatformed.”

Florida Governor Ron DeSantis, center, gives his opening statement flanked by members of the local state delegation before signing legislation aimed at punishing social media platforms that remove conservative ideas from their sites, at Florida International University's MARC Building in Miami on Monday, May 24, 2021.

The Texas law, signed in 2021 by Governor Greg Abbott, makes it illegal for any major social media platform to “block, ban, remove, deplatform, demonetize, de-boost, restrict, equalize the platforms deny access or visibility, or otherwise discriminate against expression.” Like Florida law, Texas HB 20 allows individual internet users to sue social media platforms for alleged violations.

Social media platforms are now so important as a new public square, states say, that we need new laws to make them live up to the ideals of free speech, even though the First Amendment applies to governments and not private companies.

The tech industry argues that the laws violate companies’ own First Amendment rights to decide what speech to welcome on their private platforms.

Lower courts are divided on the dispute.

In the case involving the Texas law, the U.S. 5th Circuit Court of Appeals ruled in 2022 that social media platforms do not have a “free-wheeling First Amendment right to censor what people say.”

But the 11th Circuit Court of Appeals ruled the same year that Florida’s “restrictions are substantially likely to violate the First Amendment” because governments cannot allow social media platforms to “speak” even if it does so through third-party messages.

Now the Supreme Court could settle that debate once and for all.

The NetChoice cases reflect a deep divide in how many people see social media. Supporters of the state’s laws say social media should allow all expression, without judging its message. Opponents say the platforms have the right to decide what content to display.

More than a dozen states led by Republican attorneys general have called on the Supreme Court to back the Texas and Florida legislation, arguing that social media companies act like utilities like the telephone network and should be regulated in the same way.

Former President Donald Trump argued in his own letter to the court that social media platforms “behave like airlines transporting passengers, telegraph companies sending messages, or railroads transporting freight.”

But social media companies are more like newspapers and cable companies, which can freely choose to curate what they show, and they enjoy the same constitutional protections from government speech mandates as those industries, the Biden administration wrote in a filing last year.

A pedestrian uses a smartphone in front of a store in Walnut Creek, California, in January 2022.

If enforced, the state laws would lead to “absurd results” because they would give scammers, trolls and hateful extremists an excuse to bombard websites with accusations of censorship, wrote the Electronic Frontier Foundation (EFF), a consumer advocacy group.

EFF called the Florida law “a major setback to anti-spam efforts, as any action to limit the spread of spam messages could be considered an impermissible ‘shadow ban’ under the law.”

“Allowing social media sites to be free from government interference in moderating their content ultimately benefits internet users,” David Greene, senior staff attorney and director of civil liberties at EFF, told CNN. “If platforms have the First Amendment right to control the user-generated content they publish, they can create separate forums that accommodate diverse viewpoints, interests and beliefs.”

The court’s decision in the NetChoice cases can also extend far beyond what is shown on individual sites.

A ruling for Texas and Florida could overturn a longstanding precedent that bars governments from “making coercive statements” — that is, forcing private individuals to say something against their will. For example, a 1974 case found that a Florida law requiring newspapers to publish a political candidate’s speech violated the First Amendment.

Forcing social media companies to publish all speeches, even if the platforms would prefer to remove them, would be a form of coerced speech and a dramatic and ominous shift in First Amendment law, say critics of the Texas and Florida laws.

According to the Reporters Committee for Freedom of the Press, it could lead to exactly the kind of government interference that the First Amendment was designed to guard against.

“The larger the platform the state seeks to control, the greater the state’s influence on public and political discourse will be,” that group wrote in a brief letter.

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