The Supreme Court is considering the fate of two government laws that limit how social media companies can moderate content on their platforms.
In oral arguments Monday, the justices faced a host of thorny questions that could reshape the Internet, from social networks like Facebook and TikTok to apps like Yelp and Etsy.
In October, the Supreme Court decided to hear two parallel cases, one in Florida (Moody v. NetChoice, LLC) and one in Texas (NetChoice, LLC v. Paxton). In both cases, the law was signed into law by Republican governors, with the new state law instructing social media companies to stop removing certain types of content.
Florida Senate Bill 7072 prohibits social media companies from banning political candidates or placing restrictions on their content. In Texas, the House of Representatives told 20 social media companies that they can no longer remove or invalidate content based on “the viewpoint represented in a user’s expression.” In Florida, the federal appeals court ruled mostly in favor of the tech companies, but in Texas the appeals court sided with the state.
The two laws were drafted by Republican lawmakers to punish social media companies for their anti-conservative bias. These accusations have not been substantiated by research, but conservative social media users are disproportionately exposed to political misinformation, which may explain perceptions of ideological inconsistency in technology content moderation decisions.
Florida and Texas laws are now tangled in a complex web of dusty legal precedent, which relies largely on rulings created long before words like “tweet” and “livestream” became part of everyday speech. And because most of the laws governing the modern internet are so outdated, tech companies and their critics alike are eager for clarity — though, as the Supreme Court showed last year in two different social media cases, they may not get it.
On Monday, judges on both sides of the political spectrum seemed skeptical about those two state laws. In oral arguments, Justice Sonia Sotomayor called these cases “strange,” warning that their broad nature could have unexpected implications.
“Your law appears to cover almost every online social media platform, and we have friends who are not from traditional social media platforms, such as smartphones and others who have filed amicus briefs, telling them that readings of this law could cover them.” Sotomayor said, referring to the Florida law.
“That's very broad, and it covers almost everything. But one thing I know about the Internet is that its diversity is endless.” Sotomayor pointed to the online marketplace Etsy as a less obvious example of a website that could be negatively affected by state laws designed to dictate what social media companies can Social did it.
In his speech to Florida Attorney General Henry Whitaker, Justice Brett Kavanaugh brought up the First Amendment — but not in a way sympathetic to the state's argument.
“I have said that the purpose of the First Amendment is to prevent ‘suppression of free speech,'” Kavanaugh said. “And I left out what I understand to be three key words in the First Amendment or to describe the First Amendment, ‘by government.’”
Even Justice Neil Gorsuch, who seemed more sympathetic to critical arguments against social networks, pointed to Section 230, a long-standing law that protects Internet companies' content moderation decisions, suggesting that it would likely “preempt” state restrictions on media moderation. Social Media.
Not all judges appear to be on the side of the tech industry. Justices Clarence Thomas and Samuel Alito appeared to find the states' arguments more persuasive than their peers, with Alito at one point asking whether the idea of content moderation was “more than a euphemism for censorship.”
Monday's hearing provided some clarity on where the majority of justices now appear to stand, but anything can happen — including nothing. A group of justices, including Justices Sotomayor, Gorsuch, Barrett and Thomas, expressed uncertainty about the way the cases were initially litigated.
“It's called a facial challenge, because in the face of the law the challenger is claiming that what the legislature did is unconstitutional,” Paul Barrett, an associate professor of law at New York University and deputy director of the NYU Center for Business and Human Rights, told TechCrunch. “It's a situation where one party, in this case the industry trade groups, goes to court, even before the law goes into effect. And they say to the judge: This law is unconstitutional no matter how it's applied.
“They asked the judge at that point to issue an injunction stating that the law should not take effect. In doing so, there is not the usual supply of facts, figures, experience, etc., and no testimony allowing the Court of Appeal to see how the law works in practice.”
The Supreme Court could issue a decisive ruling at any time between now and the end of its term in June. Or it can refuse to decide the issues at hand and choose to send the cases back to lower courts for a full trial, a process that could take years. “Supreme Court cases can fail in this way, frustrating other parties in most cases,” Barrett said.
Either way, the nation's highest court will eventually have to confront the Internet age head-on. Much of the relevant case law deals with cable television, newspapers, or utility companies—not Internet companies with millions or even billions of users.
“It is clear that the Supreme Court needs to update First Amendment jurisprudence to take into account this massive technological change,” Barrett said. “…The Supreme Court often lags behind society in dealing with these types of things, and now is the time to deal with them.”
