On Monday, the Supreme Court had deep concerns about state laws enacted in Florida and Texas that would prohibit social media platforms from controlling certain political viewpoints.
Most justices believed that the Florida and Texas laws likely violated the First Amendment rights of social media companies. However, the justices also voiced fear that they would go too far in blocking the laws.
Justices Question Florida, Texas Social Media Laws
The nation's highest court will have a significant opinion on how millions of Americans obtain news and information and whether social media platforms like Facebook, Instagram, YouTube, and TikTok should be autonomous to regulate hate speech, spam, and election misinformation.
According to Politico, the laws, which are still pending, would force the companies to hold all users' viewpoints and prohibit them from de-platforming political candidates. The laws were inspired by the platforms that banned Donald Trump from posting content that encouraged violence related to the Capitol attack on January 6, 2021.
The cases on Monday, Moody v. NetChoice and NetChoice v. Paxton result from challenges filed by two influential tech lobbying groups, the Computer and Communications Information Association, and NetChoice. These groups said the rules violate their First Amendment rights to choose which content is permitted or prohibited.
If the laws are allowed to take effect, the trade groups claim that it will be nearly impossible for platforms to control hate speech, support for terrorism, or other kinds of content that can be harmful to minors.
Significant justices in the cases, including liberal Ketanji Brown Jackson and the conservative Amy Coney Barrett, stated that it was unclear what the court should do because large social media sites play various roles. Although the sites are largely protected by the First Amendment and largely curate user-generated content, they also offer services like private messaging that are less editorially supervised.
Furthermore, those justices suggest that the services are similar to telephone or internet providers and may be more heavily regulated by the government. The other justices appeared to group themselves according to the platforms or the states' efforts to control them.
The court's most conservative members, including Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch, appeared deeply skeptical of the platforms' actions, portraying the social media platforms as attempting to rebrand as content moderation what amounted to efforts to silence or smother views they disagree with.
"Is it anything more than a euphemism for censorship?" Alito asked. "Some may want to resist the Orwellian temptation to recategorize offensive conduct in seemingly bland terms."
However, Chief Justice John Roberts, Justice Elena Kagan, and Justice Brett Kavanaugh, among other justices with different political ideologies, pushed back against the idea that a social media platform's choice to restrict people or specific content is similar to traditional notions of censorship. They argued that private actors should be protected from censorship by the First Amendment and not the government.
Roberts said the First Amendment does not apply to them, and the First Amendment restricts what the government can do.
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Trade Groups Speak Out
Texas Solicitor General Aaron Nielson warned that constraining the First Amendment too broadly to defend social media companies' content organization and arrangement practices might overturn several laws, such as those about consumer protection and anti-discrimination.
Nielson said that at some point the First Amendment has to end or everything is covered by the First Amendment.
Paul Clement, the trade group's attorney, said that if the rules were to take effect and the major social media companies were forced to treat all viewpoints equally, as the government usually does, the companies would face difficult decisions.
He continued that if the user has materials that are involved in suicide prevention, they also have to hold materials that advocate suicide promotion, or if the user has those on their site that are pro-Semitic, then they have to let materials onto their site that are anti-semitic.
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