Some modest hope, perhaps, that we’ll get a not-terrible ruling.
The Supreme Court cast doubt Monday on state laws that could affect how Facebook, TikTok, X, YouTube, and other social media platforms regulate content posted by their users. The cases are among several this term in which the justices could set standards for free speech in the digital age.
In nearly four hours of arguments, several justices questioned aspects of laws adopted by Republican-dominated legislatures and signed by Republican governors in Florida and Texas in 2021. But they seemed wary of a broad ruling, with Justice Amy Coney Barrett warning of “land mines” she and her colleagues need to avoid in resolving the two cases.
While the details vary, both laws aimed to address conservative complaints that the social media companies were liberal-leaning and censored users based on their viewpoints, especially on the political right.
Differences on the court Wednesday emerged over how to think about the platforms — as akin to newspapers that have broad free-speech protections, or telephone companies, known as common carriers that are susceptible to broader regulation.
Chief Justice John Roberts suggested he was in the former camp, saying early in the session, “And 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?”
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The precise contours of rulings in the two cases were not clear after arguments, although it seemed likely the court would not let the laws take effect. The justices posed questions about how the laws might affect businesses that are not the primary targets of the laws, including e-commerce sites like Uber and Etsy and email and messaging services.
The cases are among several the justices have grappled with over the past year involving social media platforms. Next month, the court will hear an appeal from Louisiana, Missouri and other parties accusing administration officials of pressuring social media companies to silence conservative points of view. Two more cases awaiting decision concern whether public officials can block critics from commenting on their social media accounts, an issue that previously came up in a case involving then-President Donald Trump. The court dismissed the Trump case when his presidential term ended in January 2021.
The Florida and Texas laws were passed in the months following decisions by Facebook and Twitter, now X, to cut Trump off over his posts related to the Jan. 6 attack on the U.S. Capitol by his supporters.
Trade associations representing the companies sued in federal court, claiming that the laws violated the platforms’ speech rights. One federal appeal struck down Florida’s statute, while another upheld the Texas law. But both are on hold pending the outcome at the Supreme Court.
See here for my previous update on this, and here for a good explainer about the issue. That “other federal appeals court” was of course the Fifth Circuit, which provides concierge service to Ken Paxton and his cronies.
More from TPM:
These cases grew out of endless conservative complaints about “shadow banning” and “censorship,” platforms’ policies that conservatives claim are single-mindedly aimed at tamping down right-wing influence. It’s a natural outgrowth of the Republican Party’s grievance politics, and ramped up after the COVID-19 pandemic, when anti-vaxxer content on social media became a huge point of contention.
Monday’s arguments centered on laws out of Florida and Texas that would guide and restrict the platforms’ content moderation decisions, and demand platforms provide individualized explanations for those decisions to the affected users. The oral arguments over challenges to the pair of laws are just the first on the Court’s docket this term to deal with these issues; another challenging the Biden administration’s practice of flagging misinformation to tech companies will be argued next month.
The Florida law in particular is quite sprawling, including provisions that the platforms cannot “censor” any “journalistic enterprise” or “willfully deplatform a candidate” for office. It also potentially extends beyond the traditional social media sites, prompting many justices to ask how the law may be applied to messaging carriers like Gmail or marketplaces like Etsy.
Questions about the breadth of the legislation consumed much of the hearings, with some justices clearly mulling remanding at least the Florida case to address the further flung applications.
But perhaps the most interesting moments in the proceedings arose when the right-wing justices’ long-held reflexive positioning came into conflict with a newer strain of their ideology: old-school, free market, pro-business conservatism vs. the new age, Trumpian culture wars. The Court’s Republican appointees are a microcosm of the same dynamic playing out in the party at large, as the old guard fights to retain relevance amid the influx of MAGA politicians and their new, often vindictive, priorities.
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For all but the most dedicated culture warriors, the Florida and Texas laws may ultimately prove too sprawling for them to get behind. The justices spent much of the arguments debating the knock-on effects of the laws and of questioning how, if one of these tech platforms chose to opt out of serving Florida or Texas rather than complying with the law, it could even manage to do it.
But the issue isn’t going away. As long as a sizeable chunk of the right-wing legal world cares greatly about punishing companies it views as enemies — and as long as the Fifth Circuit Court of Appeals happily rubber stamps these suits on the way up — the pro-business justices and the culture warriors on the Supreme Court will continue to be locked into their internecine battles.
There’s another case before SCOTUS involving the federal government’s ability to contact social media companies to ask them to take action on specific things they identify as misinformation. That case will be heard on March 18. Never a dull moment. Law Dork and Slate have more.