Supreme Court weighs if states can crack down on social media censorship


The U.S. Supreme Court will soon weigh in on whether states can pass laws prohibiting major social media companies from censoring views they find disagreeable.

On Monday, the Supreme Court heard oral arguments in the cases of NetChoice v. Moody and NetChoice v. Paxton, which center on whether Texas and Florida can pass laws barring social media platforms from censoring conservative posts.

The high court first heard arguments regarding Florida's law, Senate Bill 7072 or the "Stop Social Media Censorship Act," which Gov. Ron DeSantis signed in May 2021.

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Florida Solicitor General Henry C. Whitaker asserted that social media platforms like Facebook and Twitter "do not have a First Amendment right to apply their censorship policies in an inconsistent manner and to censor and deplatform certain users."

Whitaker contends "the state has an interest, a First Amendment interest, in promoting and ensuring the free dissemination of ideas" on "large, powerful businesses like that that have undertaken to host massive amounts of speech and have the power to silence those speakers."

Justice Brett Kavanaugh asked Whitaker if the law could ever be applied to other entities, like "publishing houses and printing presses and movie theaters" and "bookstores, newsstands."

"The social media platforms, their terms of service, their content moderation policies are really part of the terms under which they are offering their service to users," Whitaker replied.

"We certainly agree that a newspaper and a bookstore is engaging in inherently expressive conduct. And our whole point is that these social media platforms are not like those."

Justice Elena Kagan asked if the law would stop social media platforms from censoring "extremely damaging" misinformation or removing "hate speech or bullying."

"You still would have to look at the objective activity being regulated, namely, censoring and de-platforming, and ask whether that expresses a message," Whitaker responded.

Paul D. Clement, a former U.S. solicitor general who argued on behalf of the respondents, told the Supreme Court that he believes the Florida law "violates the First Amendment several times over."

"It interferes with editorial discretion. It compels speech. It discriminates on the basis of content, speaker and viewpoint," Clement continued. "This statute defines the targeted websites in part by how big their audience is. It regulates the content and display of particular websites, and it tries to prevent my clients from censoring speakers and content."

Justice Clarence Thomas brought up Section 230 of the Communications Decency Act of 1996, which gives technology companies immunity from civil liability regarding content added to or removed from their online platforms.

"And the argument under Section 230 has been that you're merely a conduit," Thomas said. "Now you're saying that you are engaged in editorial discretion and expressive conduct. Doesn't that seem to undermine your Section 230 arguments?"

Clement replied, "My clients have consistently taken the position that they are not mere conduits," adding that "the whole point of [Section 230] was to encourage websites and other regulated parties to essentially exercise editorial discretion to keep some of that bad stuff out of there."

The court later heard arguments regarding Texas' House Bill 20, signed into law by Gov. Greg Abbott in September 2021, to prohibit social media platforms with over 50 million monthly users from censoring political content.

U.S. Solicitor General Elizabeth Prelogar argued against HB 20, claiming the law wrongfully tries to "countermand the protected editorial speech decisions of the platform."

"The only justification it's offered to the courts below is that it wanted to essentially amplify the voice of users on that platform by suppressing the platform's own protected speech," she said. "That is a defect that is clear under the First Amendment and the Court could say only that and resolve this case."

Kagan mentioned net neutrality and asked Prelogar what made internet service providers different. "What if an Internet service provider wanted to make certain content distinctions?" she asked. 

"Internet service providers are fundamentally different because they are engaged in transmitting data in order to make websites accessible, and that is not inherently expressive," Prelogar replied.

"So, we would put them in the same category as telephone and telegraph companies or UPS, where you could say, sure, they're literally facilitating the transmission of speech, but they're not creating an expressive product that could implicate the First Amendment principles at stake."

In recent years, major social media platforms like Facebook and YouTube have faced several allegations of censoring conservative viewpoints and punishing the accounts that voice right-wing viewpoints or traditional Christian beliefs on marriage, gender or sexuality. 

Punishments have included suspending individuals for certain posts, making conservative content less visible to users and demonetizing major accounts over expressing unpopular opinions.

In addition to the litigation regarding Texas and Florida's laws, the Biden administration is currently facing legal action on claims it urged social media sites to censor opposing views that were labeled "misinformation," such as claims that COVID-19 originated from a lab in Communist China and news reports about Hunter Biden.

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