Supreme Court questions whether Texas and Florida can regulate social media to ‘protect’ speech

WASHINGTON —  The Supreme Court sounded divided Monday during arguments on whether Florida and Texas can regulate popular social media sites and impose heavy fines on those who discriminate against conservatives or “deplatform” prominent Republicans, as happened to former President Trump after he continued to spread false claims about the 2020 election.

The court’s conservatives were split on whether deplatforming, or removing a user from a platform for violating the site’s rules, was a protected editorial choice or “censorship” by a big tech company.

And all of the justices said they were uncertain whether they could or should strike down these new laws entirely or perhaps rule more narrowly on certain provisions.

The cases have drawn intense interest because neither Congress nor the high court had decided on how the government can regulate these popular platforms.

During Monday’s argument, most of the justices appeared to agree that the two states’ laws would violate the free-speech rights of Facebook, YouTube, TikTok and others if the social media companies were punished for removing content they deemed objectionable or false.

Chief Justice John G. Roberts Jr. and Justices Brett M. Kavanaugh and Amy Coney Barrett said the 1st Amendment prohibits the government from restricting the editorial decisions of a private company, including websites.

When a lawyer defending Florida’s law said the state was simply trying to protect free speech in politics, Kavanaugh interrupted him, noting that the 1st Amendment says the government does not have the authority to decide which speech is appropriate.

“You left out what I understand to be three key words in the 1st Amendment — by the government,” Kavanaugh told Florida state solicitor Henry Whitaker.

Justices Clarence Thomas and Samuel A. Alito Jr. disagreed, saying the two states were defending free speech against “censorship.”

Thomas said the social media sites act as “common carriers” for speech, similar to telephone companies, and he disputed they were engaged in “expressive” activity protected by the 1st Amendment.

“What’s the expressive conduct when Twitter deplatforms someone?” he asked. “Can you give me one example of a case in which we have said the 1st Amendment protects the right to censor?” he asked at another point.

Alito said the social media sites refer to “content moderation” but they were in fact engaging in censorship. “Some may want to resist the Orwellian temptation to recategorize offensive conduct in seemingly bland terms,” he said.

Minutes later, Kavanaugh spoke up to disagree. He said author George Orwell wrote about an all-powerful state that controlled speech, not private companies.

“When I think of Orwellian, I think of the state, not the private sector,” he said.

The outcome in the case appeared uncertain, however. Justices Sonia Sotomayor, Ketanji Brown Jackson and Neil M. Gorsuch said they were not prepared to strike down the Florida law entirely.

“This law is broad. It could apply to all sorts of things,” Jackson said, including email messages.

The justices spent much of their time discussing how and whether they could rule on parts of the laws that affect only the social media provisions.

The Florida and Texas laws under review arose from complaints three years ago that Trump had been discriminated against or unfairly blocked by social media sites, including Twitter.

In 2021, Florida Gov. Ron DeSantis signed his state’s first-in-the-nation law and said it targeted the “Big Tech censors” who “discriminate in favor of the dominant Silicon Valley ideology.”

The measure, adopted before billionaire Elon Musk purchased Twitter and changed its name to X, applies to social media sites with more than $100 million in annual revenue or more than 100 million users.

It authorizes lawsuits for damages for “unfair censorship” and large fines if a social media site “deplatforms” a candidate for office.

Texas Gov. Greg Abbott signed a somewhat broader bill a few months later, saying “conservative speech” was being threatened. It says a social media platform with more than 50 million users in the United States “may not censor ... or otherwise discriminate against expression” of users based on their viewpoint.

NetChoice and the Computer & Communications Industry Assn. sued to challenge both laws on free-speech grounds, and both laws were put on hold, including by a 5-4 order from the Supreme Court.

The 1st Amendment clash revolves around a dispute over how to characterize these popular and profitable sites. Are they private companies like a newspaper or a book store with full free-speech rights to decide what material to include or exclude?

Or as Thomas has insisted, are these online platforms more properly described as “common carriers,” like a telephone company with a legal duty to carry all speech and discriminate against none based on the message?

The outcome will be closely watched in blue states as well as red ones.

Last year, the California Legislature adopted a measure to prohibit online companies from collecting and selling data on children and teenagers, but it was blocked on 1st Amendment grounds by a federal judge in San Jose. The state’s appeal is now before the 9th Circuit Court.

The Biden administration is also facing suits from several Republican states for allegedly pressuring social media sites to remove “disinformation” on the dangers of COVID-19 vaccines. The Supreme Court will hear that case next month.

The two federal appeals courts in the South, speaking through Trump appointees, have taken opposite stands on the free-speech issue.

Judge Kevin Newsom, speaking for the 11th Circuit Court in Atlanta, blocked most of Florida’s law from taking effect on the grounds it was unconstitutional.

The 1st Amendment “constrains government actors and protects private actors,” he said. Social media sites are private companies, and “put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it.”

Judge Andrew Oldham, speaking for the 5th Circuit Court in New Orleans, upheld the Texas law on the grounds the state sought to protect the free speech rights of Texans.

A former counsel to Abbott and a law clerk to Alito, Oldham said it is a “rather odd inversion of the 1st Amendment” to say the social media platforms have a “right to muzzle speech. ... We reject the idea that corporations have a freewheeling 1st Amendment right to censor what people say.”

Both state measures also require social media sites to disclose how they decide on removing information or users. That part of the Florida law was not blocked by the lower courts.