States Try to Convince Supreme Court to Keep Laws Regulating Social Media

WASHINGTON — The Supreme Court seemed skeptical Monday of two state laws that could redraw social media companies’ right to decide what sort of content is displayed on their platforms.

The tech companies say the Florida and Texas laws that seek to limit which content they can remove from their platforms trample their free speech and editorial judgment.

Attorneys’ arguments Monday focused mostly on a 2021 Florida law that prohibits major social media companies like Facebook and YouTube from barring posts by state political candidates.

Lawmakers in Florida say they are trying to regulate partisan conduct, not free speech guaranteed by the First Amendment. They accuse social media companies of favoring liberal causes and censoring conservative political viewpoints.

Texas approved a similar law in 2021. The Texas law bans social media companies from removing user posts regardless of the opinions they express.

Both state laws require social media platforms to explain to each user why their posts have been edited or removed. The laws also grant users a right to sue when they believe they have been censored unjustifiably.

The state-level movement to restrict social media started with the Jan. 6, 2021, insurrection at the U.S. Capitol.

Facebook, Twitter and YouTube responded by banning former President Donald Trump’s posts from their platforms. This enraged conservatives who supported Trump.

Several of the Supreme Court justices said the Florida and Texas laws could restrict private internet content unrelated to influencing the politics of the public. They mentioned examples of Gmail, ride-share company Uber and online marketplace Etsy.

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

Lower courts have blocked enforcement of the state laws until the Supreme Court rules on them, which is expected in the spring.

Chief Justice John Roberts said, “I wonder, since we’re talking about the First Amendment, whether our first concern should be with the state regulating what we have called the modern public square.”

The states based their laws partially on the fact internet platforms are common carriers regulated by the Federal Communications Commission. Common carriers refer to entities regulated by the government that offer services open to the general public, like railroads, airlines and telephone companies.

Florida Solicitor General Henry Whitaker said the common carrier status of social media companies makes them different from other media like newspapers, which he agreed have broad First Amendment rights to decide what they publish.

“Our whole point is that social media platforms are not like that,” Whitaker said.

Paul Clement, an attorney for the tech companies, said the state laws encourage irresponsible behavior by forcing social media companies to accept user content “no matter how horrible their conduct.”

The internet platforms typically use their editorial discretion to remove only the most offensive content, such as children urging other children to commit suicide or inciting terrorism, Clement said.

While calling the state laws “unconstitutional,” he added, “Editorial discretion is absolutely necessary to make the websites useful.”

He also cautioned that a ruling against the tech companies could violate section 230 of the Communications Decency Act, which shields tech platforms from lawsuits related to their content moderation. 

“Congress wanted us to operate as publishers,” Clement said.

Roberts seemed to agree when he said, “What the government’s doing here is saying, ‘You must do this, you must carry these people — you’ve got to explain if you don’t.’ That’s not the First Amendment.”

The Biden administration supports the tech companies.

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