Takeaways from the Supreme Court’s arguments on Texas and Florida’s social media laws and the First Amendment

By CNN

Published February 26, 2024 5:42 PM

CNN

By John Fritze, Brian Fung and Catherine Thorbecke, CNN

(CNN) — The Supreme Court expressed skepticism Monday about state laws in Texas and Florida designed to stop social media giants from throttling conservative views but also suggested that whatever decision emerges may not be the court’s final word on the significant First Amendment questions raised by the case.

During nearly four hours of oral arguments, the justices appeared divided along non-ideological lines as they wrestled with whether social media companies like Meta and X have have created a “public square” that sets them apart from other private entities.

The justices struggled with sweeping First Amendment questions about whether social media platforms should be treated like “common carriers,” such as telephone companies, that are required to transmit content across their networks regardless of viewpoint or whether they act more like newspaper publishers that can choose which articles to place on the front page.

Despite the high stakes involved and the potential to radically change how millions of Americans get their news and information on the popular sites, several of the justices appeared to be angling for a potential outcome that would keep the laws on hold temporarily and allow lower courts to further review the impact on a wide range of internet sites.

The Texas and Florida laws prohibit online platforms from removing or demoting user content that expresses certain viewpoints — legislation that came in response to accusations from former President Donald Trump and other conservatives that the platforms were hindering conservative perspectives.

Here are the key takeaways from the courtroom:

How far does the First Amendment reach when it comes to social media?

Online platforms engage in censorship when they silence certain users’ speech, the states argued to the court.

But multiple justices challenged that claim, pointing out that the First Amendment only prevents governments from restricting speech, not private businesses. In fact, the tech industry argued, government requirements that social media not moderate content would violate the platforms’ own First Amendment freedoms from government meddling.

Without the power to dump users or posts, the industry argued, social media sites might be forced to give greater airtime to misinformation and hate speech — and their own expressions against those ills would be silenced.

Those arguments appeared to divide at least some of the court’s conservatives. Justice Samuel Alito pressed the lawyer representing the Biden administration on why, when a social media company takes down a post, that shouldn’t be described as “censorship” rather than “content moderation.” Alito said he worried about “the Orwellian temptation to recategorize offensive conduct in seemingly bland terms.”

Justice Brett Kavanaugh, a fellow conservative whose questions seemed to indicate support for the tech companies, responded by noting that the First Amendment’s prohibition on barring speech only applies to government action.

“When I think of ‘Orwellian,’ I think of the state – not the private sector, not private individuals,” Kavanaugh said. “Maybe people have different conceptions of ‘Orwellian.’”

At one point, Justice Elena Kagan noted that the tone and range of content shifted on X after Elon Musk bought the company in October 2022.

“A lot of Twitter users thought that was great. And a lot of Twitter users thought that was horrible,” Kagan said.

Her point was that the change in tone was a reflection of a change in the company’s own speech, and that such speech is protected from government intrusion by the First Amendment.

Uber? Venmo? Which platforms are in play?

One of the central features of the arguments – particularly in the Florida case – was a debate over which internet sites are covered by the laws. Given the nature of the litigation and the speed with which it arrived at the Supreme Court – that’s not entirely clear.

The justices struggled with how the state laws might be applied to a long list of sites, including popular social media apps Facebook, Instagram, TikTok and YouTube, but also smaller ones like LinkedIn and even sites that are not considered social media, such as Etsy, Uber, Venmo and Google search and Amazon’s cloud computing business.

Even if a majority of the justices agree that social media companies are engaging in First Amendment protected activity when they remove certain users or take down posts, there were many questions about whether the law also applies to sites like Uber or Venmo that perform no similar moderation.

Kagan, a member of the court’s liberal wing, asked why a state couldn’t bar Uber from declining to pick up riders based on political views, for instance.

“When you’re running Venmo you’re not engaged in speech activities and so when a state says to you, “You know what, you have to serve everybody irrespective of whether you like their political opinions or not,’ then it seems you have a much less good argument,” Kagan told the attorney representing the tech industry. “This statute also says that, doesn’t it?”

That view, echoed by both conservative and liberal justices, suggested a reluctance to toss out the laws entirely. It also suggested that some are thinking about sending the litigation back down to lower courts for further review on those points. In that case, the court would likely keep the laws on hold temporarily.

Section 230 features prominently in arguments

One question kept coming up during the arguments, just as it has in lower courts: What these state laws could mean for Americans’ overall ability to sue social media companies over content moderation.

The state laws explicitly allow users to sue tech platforms for alleged censorship. But Section 230 of the Communications Decency Act, a 1996 federal law, shields tech platforms from exactly these types of lawsuits — raising questions about how the laws by Texas and Florida might interact with or be preempted by what has become a bipartisan punching bag.

Members of both political parties have railed on Section 230, but for different reasons. Conservatives argue the law lets platforms get away with censorship, while liberals say it gives social media companies a free pass to allow hate speech and other obscene content on their platforms.

If the court sides with the states in these cases, it could indirectly have broad and potentially unforeseen consequences for the scope of Section 230, said Justice Amy Coney Barrett.

“If what we say about this is that this is speech that’s entitled to First Amendment protection, I do think then that has Section 230 implications for another case,” she said. “And so it’s always tricky to write an opinion when you know there might be landmines that would affect things later.”

Effectively changing the breadth of Section 230 may, in other words, reshape the circumstances under which social media platforms could be sued more broadly.

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