As Congress has largely stayed at a standstill over internet policy, the Supreme Court will hear arguments Monday in cases that could shake up a broad swath of the online landscape and define how lawmakers could regulate social media companies.
The two cases stem from challenges to laws in Texas and Florida that would restrict how the largest social media sites and other online platforms moderate their content and require them to explain to an account holder whenever they do remove or alter a post.
The states have argued the laws would prevent online platforms from discriminating against anyone online based on their viewpoints and ensure transparency in the content moderation process for social media platforms that carry much of public discourse nationwide.
Texas and Florida enacted the laws as part of conservative backlash to perceived “censorship” of conservative views by major social media platforms, and they included requirements that those sites have detailed explanation and appeals process when people are blocked.
Industry groups, free speech advocates and the Biden administration argued that the laws violate the First Amendment rights of social media companies, who should not be forced to host speech that they do not want to or be forced to explain their moderation decisions.
At the center of the cases is a big question that experts said could shape what Congress and states would be allowed to do to regulate social media companies: What, exactly, are the free speech rights of an online platform?
Clay Calvert, a senior fellow at the right-leaning American Enterprise Institute, said it’s possible for the justices to avoid that question, but arguments by Texas and others in the cases could make that difficult.
“I think they’re going to have to wrestle with this,” Calvert said.
The court will likely decide the two cases before the conclusion of the term at the end of June.
The cases could end up taking away tools from Congress, where concerns about how social media companies operate have simmered for years. At the center of those disputes has been Section 230 of the Communications Decency Act, which provides internet companies immunity from lawsuits for content posted by users in most cases.
Section 230 in the middle
The Supreme Court has recently shied away from broad rulings on the free speech rights of online platforms, including in decisions in two cases last year where they sided with Google and Twitter when the two were sued for damages over terror attacks abroad.
In the cases now before the court, Texas and Florida have pushed for a broad ruling, arguing that social media companies should be regarded as common carriers, like telephone companies or delivery services, with fewer free speech rights and open for more regulation.
Texas pointed to Section 230 itself as evidence for common-carrier status, calling it “an effort by Congress to recognize that entities like the Platforms are not speakers but conduits for their users’ speech,” in court papers.
The Biden administration, which weighed in only after the justices requested it do to so last year, argued against considering social media companies as common carriers. Solicitor General Elizabeth Prelogar argued in court papers that Section 230 was irrelevant to the fact that social media companies have their own free speech rights.
“The First Amendment’s coverage does not depend on Congress’s choices about damages liability. Instead, what matters is whether platforms are engaged in expressive activity,” Prelogar wrote.
Devon Ombres, the senior director for courts and legal policy at the left-leaning Center for American Progress, said that upholding the Texas and Florida law could cause a balkanization of the internet, with “piecemeal, patchwork laws” across the country, mandating different rules state by state.
“Allowing this to go into effect would not only limit the censorship of politically unpopular positions, it would prohibit the censorship of anything. It would allow you know, white nationalist Nazis to be posting everywhere and social media companies would not be able to take it down,” Ombres said.
Meanwhile Calvert said a broad ruling granting First Amendment rights of online platforms could impact the toolkit of state legislatures and Congress to regulate online platforms, including policing harm to minors, restricting the sale of illicit drugs and other issues.
“If you do afford First Amendment rights and social media platforms, editorial control discretion, is therefore going to limit the different ways and mechanisms in which other governmental entities state, local or federal could try to regulate social media platforms,” Calvert said.
A group of states led by New York raised those issues in their own amicus brief in the cases, which ask the justices to limit the scope of their decision, however the case comes out.
Congress aside
It could also endanger nascent congressional efforts to regulate social media companies. Earlier this month a bipartisan majority of senators announced a new version of a bill on a narrower issue – making platforms more responsible for minors’ safety while online. The bill is backed by Sens. Marsha Blackburn, R-Tenn., and Richard Blumenthal, D-Conn., who have said at least 60 senators support it, which signals the chamber could overcome an attempt to block the bill.
Depending on how the court rules, efforts to police social media companies like that could run afoul of the Constitution, Calvert said.
At least one justice has said he wants to address the free speech issues surrounding social media platforms. In a 2021 case about former President Donald Trump blocking critics on Twitter, Justice Clarence Thomas wrote the court should reckon with the power social media platforms have over the nation’s discourse.
“We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms,” Thomas said.
There are several routes for the court to decide the issue in a more limited way, including one offered by Sen. Ben Ray Luján, D-N.M., and others in briefs to the court.
Luján pointed out that the existence of Section 230 makes internet content moderation a federal issue for Congress and social media companies to hash out.
“Either way, the Constitution requires that decision be left to the private companies running these platforms or federal law — not to the States,” Lujan wrote.
Congressional inaction
Industry groups sued to block the Texas and Florida laws in 2021. Federal appeals courts reached opposite conclusions, upholding the Texas law and blocking the Florida law.
The challengers to the laws, NetChoice LLC and the Computer & Communications Industry Association, argued the laws violate their free speech rights for the same reason: the government cannot compel speech.
Netchoice said content moderation decisions include removing posts or having an algorithm deprioritize them, so the notification and appeals process would involve cataloging billions of decisions.
“This reality suggests that these provisions are not designed to prevent consumer deception, but rather to chill the exercise of editorial discretion by State-disfavored websites and force them to disseminate speech against their will — as the Legislature expressly intended,” Netchoice wrote.
Republicans have criticized social media companies for attempting to have their cake and eat it too with their liability protections. Sen. Josh Hawley, R-Mo., said as much in a brief in the case, arguing that social media companies should not both be immune from civil liability in Section 230 and from government regulation.
“Congress never intended to extend absolute immunity to tech platforms for whatever speech-related actions they might take. And yet this is the result that, in principle, the platforms now seek,” Hawley wrote.
Members on both sides of the aisle have said they intend to change the law, including when dressing down social media executives at high-profile hearings, such as one last month. However, most efforts to change the law more broadly have broken down along partisan lines.
Ombres said that there has not been much in the way of bipartisan agreement about how to handle internet content moderation more broadly.
He said a blunt repeal of the immunity could make websites shy away from any kind of moderation, turning the internet into “8chan,” a site notorious for extreme content.
The post Supreme Court to hear arguments on online content moderation appeared first on Roll Call.
