Landmark Social Media Cases Set for US Supreme Court Hearing

This week, the US Supreme Court will consider two issues that have the potential to completely change the way the internet functions, and they will ultimately determine what content citizens can view on social media.

In light of the crucial role that social media platforms currently play in contemporary American life, the court will hear arguments on Monday over whether to grant Texas and Florida noticeably more power over these sites and their contents.

The main question is: Can these platforms determine what can be deleted off their sites and what should remain on them?

The states seek to prevent users’ posts from being removed from Facebook, Tik-Tok, YouTube, and other platforms; these messages may even encourage hate speech or eating disorders, mislead voters about elections, or do other illegal activities. However, the First Amendment is being pressed against by that push.

Even the way that Americans learn about the 2024 elections—from Instagram to X and beyond—may alter if the states win their case.

Officials from Texas and Florida contend that their laws restricting content moderation are lawful because they aim to control the business practices of social media platforms rather than the speech on them. However, opponents, such as the industry organization Net Choice, are trying to invalidate both measures on the grounds that they violate the First Amendment rights of the platforms themselves and that their scope may have far-reaching unforeseen repercussions.

For instance, a group of political scientists informed the court that the laws don’t provide social media platforms enough latitude to moderate threats against election officials and instead force them to consider “dangerous and violent election-related speech” the same as non-violent speech.

Is it constitutional to limit content moderation?

The Supreme Court will decide whether states can prevent social media companies from censoring or removing user content that violates platform rules on Monday in the cases of Net Choice v. Paxton and Moody v. Net-Choice.

Individuals may also file lawsuits against tech companies under the relevant state legislation for suspected infractions.

Although the legislation in Texas and Florida are somewhat wide, state representatives claim that the regulations will prevent social media platforms from unjustly suppressing conservatives. Social media companies have maintained for years that right-wing discourse is not subject to discrimination.

Florida’s SB 7072, which was signed into law by Governor Ron DeSantis in 2021, forbids digital platforms from deleting or suspending political candidates’ accounts within the state. Violators risk harsh penalties of up to $250,000 a day. In addition, it gives users of social media the ability to legally sue platforms if they feel that they have been wrongfully restricted or “deplatformed.

Any major social media platform that wishes to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression” is in violation of a Texas legislation that was signed into law by Governor Greg Abbott in 2021. Texas’ HB 20 allows individual internet users to sue social media companies for alleged infractions, much like the Florida legislation does.

Florida Gov. Ron DeSantis, center, gives his opening remarks flanked by local state delegation members prior to signing legislation that seeks to punish social media platforms that remove conservative ideas from their sites, inside Florida International University’s MARC building in Miami on Monday, May 24, 2021. Carl Juste/Miami Herald/AP

Even though the First Amendment only protects governments and not private companies, the states claim that social media platforms have become so significant as a new public square that new laws are required to force them to abide by the principles of free speech.

The IT sector claims that the restrictions go against the corporations’ First Amendment freedom to select what speech is acceptable on their exclusive platforms.

Regarding the dispute, lower courts are divided.

The US 5th Circuit Court of Appeals ruled in 2022 that social media companies do not possess “a freewheeling First Amendment right to censor what people say” in the Texas law case.

However, the same year, the 11th Circuit Court of Appeals declared that Florida’s “restrictions are substantially likely to violate the First Amendment,” reasoning that governments are not allowed to “speak” on social media platforms, even when it is through user-generated content.

The Supreme Court could now definitively end that argument.

Do IT corporations resemble public utilities or publishers more?

The Net Choice cases demonstrate the stark differences in how different people view social media. The state regulations’ proponents contend that social media ought to tolerate all speech without censoring its content. The platforms should have the authority to choose what content they show, according to critics.

Roughly twelve states, headed by Republican attorneys general, have petitioned the Supreme Court to support the laws in Texas and Florida, claiming that social media businesses should be subject to the same regulations as utilities like the phone network.

In his own court filing, the former president Donald Trump contended that social media businesses “act like railroads carrying freight, telegraph companies transmitting messages, or airlines carrying passengers.”

However, the Biden administration stated in a brief from last year that social media businesses are more like cable and newspaper corporations in that they are free to select what they show and have the same constitutional safeguards against government speech regulations.

A pedestrian uses a smartphone in front of a store in Walnut Creek, California, in January 2022. David Paul Morris/Bloomberg/Getty Images

The state laws, according to the Electronic Frontier Foundation (EFF), a consumer advocacy organization, would have “absurd results” if they were implemented because they would provide con artists, trolls, and nasty radicals with a justification to bombard websites with claims of censorship.

“A major setback to efforts to combat spam,” according to the Electronic Frontier Foundation, “because every action to limit the spread of spam messages might be considered an impermissible ban’ under the law.”

Internet users ultimately gain by allowing social media services to remain free from government intervention in their content moderation, according to David Greene, senior staff attorney and civil liberties director at EFF, who spoke with CNN. “Platforms can create unique forums that accommodate a range of viewpoints, interests, and beliefs when they are granted the First Amendment right to curate the user-generated content they publish.”

Beyond what is seen on specific websites, the court’s ruling in the NetChoice cases may have far-reaching implications.

If Texas and Florida win, the precedent that forbids governments from “compelling speech”—that is, compelling private citizens to say something against their will—might be altered. For instance, a 1974 judgment found that a Florida statute that mandated the publication of a political candidate’s remarks in newspapers was unconstitutional under the First Amendment.

Critics of the Texas and Florida laws argue that forcing social media companies to post all speech, even if the platforms would prefer to remove it, would amount to coerced speech and would mark a major and dangerous shift in the interpretation of the First Amendment.

According to the Reporters Committee for Freedom of the Press, it might result in the exact kind of government meddling that the First Amendment was intended to prevent.

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