Supreme Court appears open to free speech challenges to social media laws

The Supreme Court seemed skeptical Monday about laws in Florida and Texas that prohibit large social media companies from making editorial judgments about what posts to allow.

The laws were enacted in an effort to protect conservative voices on the sites, but a court decision, expected by June, is sure to be its most important statement on the reach of the First Amendment in the Internet age. with broad policy and policy implications. economic implications.

A ruling that tech platforms have no editorial discretion to decide which posts to allow would expose users to a wider variety of viewpoints but would almost certainly amplify the uglier aspects of the digital age, including speech from hatred and disinformation.

Even though a ruling in favor of big platforms like Facebook and YouTube seems likely, the court also appears ready to send the case back to lower courts to answer questions about how the laws apply to sites that don’t appear to moderate the speech of their users in the same way, such as Gmail, Venmo, Uber and Etsy.

The justices disagreed on whether the laws, so far blocked, should take effect in the meantime. But a majority seemed inclined to keep them in abeyance while the litigation moves forward. Several judges said states violated the First Amendment by telling a handful of big platforms they couldn’t moderate their users’ posts, drawing distinctions between government censorship prohibited by the First Amendment and corporate actions private companies to determine what speech to include on their site. sites.

“I have a problem with laws that are so broad that they stifle face-to-face speech,” Justice Sonia Sotomayor said.

Justice Brett M. Kavanaugh reads a sentence from to financing the 1976 campaign decision which has long been a touchstone for him. “The concept that the government can restrict the speech of certain elements of our society in order to enhance the relative voice of others is completely foreign to the First Amendment,” he said, indicating that he rejected the states’ argument that they could regulate fairness. public debate in a private setting.

“I wonder,” Chief Justice John G. Roberts Jr. said, “since we’re talking about the First Amendment, whether our first concern should be to see the state regulate what, you know, we’ve called the place modern public.”

Henry C. Whitaker, Florida’s solicitor general, responded that “the state has an interest, a First Amendment interest, in promoting and ensuring the free dissemination of ideas.”

Justice Elena Kagan said major platforms had good reason to reject posts inciting insurrection, endangering public health and spreading hate speech. “Why isn’t this a First Amendment judgment?” she asked.

The court’s three most conservative members — Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — appeared supportive of the state’s laws. The three phrases pronounced as “content moderation” were euphemisms for censorship.

When the discussion turned to less prominent sites, judges across the ideological spectrum were troubled by the lack of information about them in the brief before the court. Several indicated that they might analyze the First Amendment issue differently depending on the platform.

Justice Kagan asked whether states can tell services like Venmo, Dropbox and Uber that they cannot discriminate based on their users’ views.

“Is this wrong?” she asked Paul D. Clement, a lawyer for the challengers.

Mr. Clement said no, responding that all of these services “are still in the speech business,” meaning that speech is part of their core business, which is not the case, for example, with a gas station or an ice cream stand.

Other judges asked about email and messaging services.

“Does Gmail have the right under the First Amendment to delete, say, Tucker Carlson’s or Rachel Maddow’s Gmail accounts if they disagree with its views?” » Justice Alito asked Mr. Clement.

Mr Clement responded that the service “might be able to do that”, adding that such issues had not been the focus of the dispute.

He added that prohibiting platforms from making distinctions based on viewpoint would destroy their businesses.

“If you have to be viewpoint-neutral,” he said, “that means if you have materials that address suicide prevention, you also have to have materials that advocate for the promotion of suicide.” . Or, if your site contains prosemite material, then you must allow anti-Semitic material to be published on your site. And it’s a formula that makes these websites very unpopular, both with users and advertisers.

Supporters of the laws said it was an attempt to combat what they called Silicon Valley censorship, whereby major social media companies removed posts expressing conservative views. The laws were prompted in part by decisions by some platforms to exclude President Donald J. Trump after the January 6, 2021 attack on the Capitol.

Florida and Texas laws differ in their details. Florida’s prevents platforms from permanently excluding candidates for political office in the state, while Texas’s prohibits platforms from removing any content based on a user’s point of view.

“To generalize a little” Judge Andrew S. Oldham written in a decision upholding Texas lawFlorida law “prohibits there censorship of a few loudspeakers”, while that of Texas “bans a few censorship of there speakers” when based on the opinions they express.

The two trade associations challenging the state laws — NetChoice and the Computer & Communications Industry Association — said the actions Judge Oldham called censorship were editorial choices protected by the First Amendment, which generally prohibits government restrictions on speech based on content and point of view.

The groups said social media companies are entitled to the same constitutional protections enjoyed by newspapers, which are generally free to publish whatever they want without government interference.

Justice Kavanaugh appeared to take that position, asking Mr. Whitaker, the lawyer representing Florida, whether states could tell publishing houses, printing houses, movie theaters, bookstores and newsstands what they were to present.

Mr Whitaker said newspapers and bookstores engage in “inherently expressive behavior”, whereas “our argument is that these social media platforms are not like those”.

He added that, in effect, the platforms were necessary public mediums for conveying everyone’s messages and that Florida law protected free speech by ensuring users had access to many points of view.

Several judges said Monday it was difficult to reconcile the platforms’ arguments with what they said last year in cases involving Section 230 of the Communications Decency Act, which protects corporations social media companies from any responsibility for what their users publish.

In those cases, Justice Thomas said, the platforms argued that they were mere conduits for others to speak. “Now you say you exercise editorial discretion and expressive conduct,” Mr. Clement said. “Doesn’t this seem to call into question your arguments regarding Section 230?

Mr. Clement responded that a key part of the provision was intended to protect platforms from liability for making editorial judgments.

Federal appeals courts reached conflicting conclusions in 2022 on the constitutionality of the two laws.

A unanimous three-judge panel of the United States Court of Appeals for the 11th Circuit widely respected a preliminary injunction blocking the Florida law.

“Social media platforms exercise inherently expressive editorial judgment. » Judge Kevin C. Newsom wrote for the panel. “When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction violations of their community standards, they are engaging in activity protected by the First Amendment .”

But a divided jury of three Fifth Circuit judges set aside the lower court’s order block Texas law.

“We reject the platforms’ attempt to extract a right of free censorship from the Constitution’s guarantee of free speech,” Justice Oldham wrote for the majority. “Platforms are not newspapers. Their censorship is not speech.

The Biden administration supported social media companies in both cases, Moody v. Clear choiceNo. 22-277, and NetChoice v. PaxtonNo. 22-555.

The Supreme Court blocked the Texas law in 2022 while the case moved forward in a 5-4 vote.

Justice Alito wrote that the issues were so new and so important that the Supreme Court should consider them at some point. He added that he was skeptical of the argument that social media companies have editorial discretion protected by the First Amendment, as newspapers and other traditional publishers do.

“It is not at all obvious,” he wrote, “how our existing precedents, predating the Internet age, should apply to large social media companies.”