The Supreme Court Will Decide if Texas Is Allowed to Kill the Internet
Timothy Zick
SLATE
Fri, September 29, 2023
Giving Texas what it wants may spell the beginning of the end of the internet as we currently know it.
Fri, September 29, 2023
Giving Texas what it wants may spell the beginning of the end of the internet as we currently know it.
Photo illustration by Slate. Photo by Getty Images Plus.
This is part of Opening Arguments, Slate’s coverage of the start of the latest Supreme Court term. We’re working to change the way the media covers the Supreme Court. Support our work when you join Slate Plus.
When social media platforms like Facebook and YouTube moderate content, are they engaged in protected speech? Or are they engaged in an invidious form of censorship? The answer, which lies at the heart of a pair of cases the Supreme Court agreed to hear on Friday, could fundamentally alter the nature and operation of social media platforms and the internet itself.
Reacting to complaints from the political right that large social media platforms including Facebook and YouTube actively censor conservative views, Texas and Florida enacted laws prohibiting the platforms from removing, deleting, or deplatforming speech or speakers based on viewpoint. The laws differ in some respects, but both create a legal cause of action against social media platforms that engage in any of the laws’ defined methods of “censorship.” They also require that platforms provide an explanation for any posts “censored” and publicly disclose their guidelines for removing speech or speakers from the platforms.
The U.S. Court of Appeals for the 11th Circuit enjoined the Florida law, concluding it violated the First Amendment rights of the platforms to determine what content to display and which users to ban or temporarily exclude. The U.S. Court of Appeals for the 5th Circuit came to the opposite conclusion regarding the Texas law, repeatedly characterizing social media content moderation as “censorship” and finding the platforms have no First Amendment “right to muzzle speech.”
When it comes to newer media, courts and lawyers often struggle to fit contemporary problems into preexisting First Amendment decisions and doctrines. The briefs and arguments in the cases will lean heavily on analogies from prior Supreme Court precedents. For example, the platforms will argue they are like newspapers, which the court has held have an established First Amendment right to engage in editorial judgment when deciding what content to publish. The states will counter that unlike newspapers, the platforms review almost none of what they allow users to post, either before or after publication. The states will argue the platforms are more like large public malls, which the court has held can be required by law to host some expressive activity. The platforms will respond they are like parade organizers, which the court has held have a First Amendment right to determine who marches in their inherently expressive events. Judge Andrew Oldham concluded in his 5th Circuit opinion that the platforms are more like “common carriers,” including electricity providers and trucking companies, which are prohibited from denying service based on the user’s viewpoints.
If you think none of these examples fits perfectly, you are in good company. As Judge Leslie Southwick wrote in a separate opinion in the 5th Circuit case: “We are in a new arena, a very extensive one, for speakers and for those who would moderate their speech. None of the precedents fit seamlessly.”
So much is at stake in these cases—for the platforms, their users, and the public. Platforms require members of their communities to accept terms of service that include, among other restrictions, content moderation rules. By moderating obscenity, hate speech, public health misinformation, and other content, platforms enforce specific site-based community standards and define online communities. They post disclaimers to certain posts and publish their own content. The platforms also respond to threats—to individual users, the online community, and the public.
The Texas and Florida laws would substantially undermine these prerogatives. If the 5th Circuit is correct, platforms that allow user posts or videos that are anti–white supremacy, anti-misogyny, and anti–domestic terrorism would be legally compelled to provide space for pro–white supremacy, pro-misogyny, and pro–domestic terrorism speech. Efforts to combat disinformation and misinformation, whether about elections, public health, or other subjects, would also in many cases lead to legal jeopardy for the platforms—or mire them in onerous lawsuits filed by disgruntled users who insist on the right to a platform for their speech. Governments could also chill the platforms’ right to host content they actively support—out of fear they will have to allow its antithesis.
Judge Southwick is correct that there is no perfect analogy. But as he concluded, the platforms do engage in editorial functions when they curate and collate content. As the 11th Circuit observed, the platforms aren’t just “dumb pipes.” They exercise editorial judgment over what content users see when they visit the site. The fact that they do not edit in the same manner as newspapers, which among other things have only so many columns to fill, should not be considered dispositive. The fundamental point is that they edit, or moderate, content.
Critically, a Supreme Court decision upholding these social media laws would be contrary to several significant First Amendment trends—all initiated and embraced by conservative justices. First, the court has recognized and protected corporate expression in the election and other regulatory environments. Consider, for example, Citizens United, which protected corporate electioneering. If Mark Zuckerberg has the right to donate unlimited amounts of his own money to a super PAC backing a candidate he supports, then the platforms he owns the majority stake in should be able to decide what appears on them. Second, the court has been keen to protect the rights of speakers to exclude or refuse service to those with whom they disagree or do not want to associate. In fact, just last term, the court held that a website designer could not be compelled to design a custom wedding website for gay customers, notwithstanding laws that forbid discrimination based on sexual orientation. The court has also upheld the rights of parade organizers, the Boy Scouts, and other speakers to exclude speakers and speech with which they disagreed. Third, the court has characterized the internet as a “vast public library” and social media platforms as “the new public square.” Its decisions have warned lawmakers and regulators to tread very lightly, lest they chill expression and interfere with the development of a robust cyber-marketplace of ideas.
Giving governments the power to compel large social media platforms to host all manner of speakers and speech offends well-established First Amendment principles. It may also spell the beginning of the end of the internet as we currently know it. Right now, platforms can take down vile and harmful content when it offends their terms of service. But if the Texas and Florida laws stand, the platforms would become a virtual free-for-all. White supremacists, terrorists, and other harmful speakers would gain a legal right to communicate on the platforms. These and other speakers could effectively shut down the platforms by forcing them to defend countless lawsuits under the state laws.
It can be hard to muster sympathy for social media platforms and their principals, who have made inconsistent statements about their relationship to user content and have not always moderated responsibly. But the alternative offered by Texas and Florida—robbing the platforms of their editorial power—threatens mischief all out of proportion to the supposed evil those states have identified. The First Amendment does not allow government to ban private speakers from deciding what messages to disseminate or to level the playing field against what Florida Governor DeSantis has referred to as “Silicon Valley elites.”
Hopefully, the Supreme Court will accept this reality, as well as enforce its own precedents.
Supreme Court to decide if Florida, Texas laws limiting social media platforms violate Constitution
This is part of Opening Arguments, Slate’s coverage of the start of the latest Supreme Court term. We’re working to change the way the media covers the Supreme Court. Support our work when you join Slate Plus.
When social media platforms like Facebook and YouTube moderate content, are they engaged in protected speech? Or are they engaged in an invidious form of censorship? The answer, which lies at the heart of a pair of cases the Supreme Court agreed to hear on Friday, could fundamentally alter the nature and operation of social media platforms and the internet itself.
Reacting to complaints from the political right that large social media platforms including Facebook and YouTube actively censor conservative views, Texas and Florida enacted laws prohibiting the platforms from removing, deleting, or deplatforming speech or speakers based on viewpoint. The laws differ in some respects, but both create a legal cause of action against social media platforms that engage in any of the laws’ defined methods of “censorship.” They also require that platforms provide an explanation for any posts “censored” and publicly disclose their guidelines for removing speech or speakers from the platforms.
The U.S. Court of Appeals for the 11th Circuit enjoined the Florida law, concluding it violated the First Amendment rights of the platforms to determine what content to display and which users to ban or temporarily exclude. The U.S. Court of Appeals for the 5th Circuit came to the opposite conclusion regarding the Texas law, repeatedly characterizing social media content moderation as “censorship” and finding the platforms have no First Amendment “right to muzzle speech.”
When it comes to newer media, courts and lawyers often struggle to fit contemporary problems into preexisting First Amendment decisions and doctrines. The briefs and arguments in the cases will lean heavily on analogies from prior Supreme Court precedents. For example, the platforms will argue they are like newspapers, which the court has held have an established First Amendment right to engage in editorial judgment when deciding what content to publish. The states will counter that unlike newspapers, the platforms review almost none of what they allow users to post, either before or after publication. The states will argue the platforms are more like large public malls, which the court has held can be required by law to host some expressive activity. The platforms will respond they are like parade organizers, which the court has held have a First Amendment right to determine who marches in their inherently expressive events. Judge Andrew Oldham concluded in his 5th Circuit opinion that the platforms are more like “common carriers,” including electricity providers and trucking companies, which are prohibited from denying service based on the user’s viewpoints.
If you think none of these examples fits perfectly, you are in good company. As Judge Leslie Southwick wrote in a separate opinion in the 5th Circuit case: “We are in a new arena, a very extensive one, for speakers and for those who would moderate their speech. None of the precedents fit seamlessly.”
So much is at stake in these cases—for the platforms, their users, and the public. Platforms require members of their communities to accept terms of service that include, among other restrictions, content moderation rules. By moderating obscenity, hate speech, public health misinformation, and other content, platforms enforce specific site-based community standards and define online communities. They post disclaimers to certain posts and publish their own content. The platforms also respond to threats—to individual users, the online community, and the public.
The Texas and Florida laws would substantially undermine these prerogatives. If the 5th Circuit is correct, platforms that allow user posts or videos that are anti–white supremacy, anti-misogyny, and anti–domestic terrorism would be legally compelled to provide space for pro–white supremacy, pro-misogyny, and pro–domestic terrorism speech. Efforts to combat disinformation and misinformation, whether about elections, public health, or other subjects, would also in many cases lead to legal jeopardy for the platforms—or mire them in onerous lawsuits filed by disgruntled users who insist on the right to a platform for their speech. Governments could also chill the platforms’ right to host content they actively support—out of fear they will have to allow its antithesis.
Judge Southwick is correct that there is no perfect analogy. But as he concluded, the platforms do engage in editorial functions when they curate and collate content. As the 11th Circuit observed, the platforms aren’t just “dumb pipes.” They exercise editorial judgment over what content users see when they visit the site. The fact that they do not edit in the same manner as newspapers, which among other things have only so many columns to fill, should not be considered dispositive. The fundamental point is that they edit, or moderate, content.
Critically, a Supreme Court decision upholding these social media laws would be contrary to several significant First Amendment trends—all initiated and embraced by conservative justices. First, the court has recognized and protected corporate expression in the election and other regulatory environments. Consider, for example, Citizens United, which protected corporate electioneering. If Mark Zuckerberg has the right to donate unlimited amounts of his own money to a super PAC backing a candidate he supports, then the platforms he owns the majority stake in should be able to decide what appears on them. Second, the court has been keen to protect the rights of speakers to exclude or refuse service to those with whom they disagree or do not want to associate. In fact, just last term, the court held that a website designer could not be compelled to design a custom wedding website for gay customers, notwithstanding laws that forbid discrimination based on sexual orientation. The court has also upheld the rights of parade organizers, the Boy Scouts, and other speakers to exclude speakers and speech with which they disagreed. Third, the court has characterized the internet as a “vast public library” and social media platforms as “the new public square.” Its decisions have warned lawmakers and regulators to tread very lightly, lest they chill expression and interfere with the development of a robust cyber-marketplace of ideas.
Giving governments the power to compel large social media platforms to host all manner of speakers and speech offends well-established First Amendment principles. It may also spell the beginning of the end of the internet as we currently know it. Right now, platforms can take down vile and harmful content when it offends their terms of service. But if the Texas and Florida laws stand, the platforms would become a virtual free-for-all. White supremacists, terrorists, and other harmful speakers would gain a legal right to communicate on the platforms. These and other speakers could effectively shut down the platforms by forcing them to defend countless lawsuits under the state laws.
It can be hard to muster sympathy for social media platforms and their principals, who have made inconsistent statements about their relationship to user content and have not always moderated responsibly. But the alternative offered by Texas and Florida—robbing the platforms of their editorial power—threatens mischief all out of proportion to the supposed evil those states have identified. The First Amendment does not allow government to ban private speakers from deciding what messages to disseminate or to level the playing field against what Florida Governor DeSantis has referred to as “Silicon Valley elites.”
Hopefully, the Supreme Court will accept this reality, as well as enforce its own precedents.
Supreme Court to decide if Florida, Texas laws limiting social media platforms violate Constitution
Mark Sherman,WFTV.com News Staff
Fri, September 29, 2023
The Supreme Court agreed Friday to decide whether state laws that seek to regulate Facebook, TikTok, X and other social media platforms violate the Constitution.
The justices will review laws enacted by Republican-dominated legislatures and signed by Republican governors in Florida and Texas. While the details vary, both laws aim to prevent social media companies from censoring users based on their viewpoints.
The court’s announcement, three days before the start of its new term, comes as the justices continue to grapple with how laws written at the dawn of the digital age, or earlier, apply to the online world.
The justices had already agreed to decide 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.
Read: Florida government spent $30K on TikTok ads while calling app ‘security risk’
Separately, the high court also could consider a lower-court order limiting executive branch officials’ communications with social media companies about controversial online posts.
The new case follows conflicting rulings by two appeals courts, one of which upheld the Texas law, while the other struck down Florida’s statute. By a 5-4 vote, the justices kept the Texas law on hold while litigation over it continues.
Read: DeSantis signs bill banning TikTok in Florida schools
But the alignment was unusual. Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett voted to grant the emergency request from two technology industry groups that challenged the law in federal court.
Justices Clarence Thomas, Samuel Alito, Elena Kagan and Neil Gorsuch would have allowed the law to remain in effect. In dissent, Alito wrote, “Social media platforms have transformed the way people communicate with each other and obtain news.”
Read: UCF students react to campus TikTok ban
Proponents of the laws, including Republican elected officials in several states that have similar measures, have sought to portray social media companies as generally liberal in outlook and hostile to ideas outside of that viewpoint, especially from the political right.
The tech sector warned that the laws would prevent platforms from removing extremism and hate speech.
“Online services have a well-established First Amendment right to host, curate and share content as they see fit,” Chris Marchese, the litigation director for the industry group NetChoice, said in a statement. “The internet is a vital platform for free expression, and it must remain free from government censorship. We are confident the Court will agree.”
Read: University of Florida recommends students, faculty stop using TikTok
Without offering any explanation, the justices had put off consideration of the case even though both sides agreed the high court should step in.
The justices had other social media issues before them last year, including a plea the court did not embrace to soften legal protections tech companies have for posts by their users.
Copyright 2023 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed without permission.
The Supreme Court will decide if state laws limiting social media platforms violate the Constitution
MARK SHERMAN
Updated Fri, September 29, 2023
The Supreme Court is seen in Washington, Sept. 25, 2023. The new term of the high court begins next Monday, Oct. 2. The Supreme Court, which begins its new term on Monday, is awash in ritual. So it’s no surprise that the lawyers have a few regular, if occasionally eccentric, observances of their own.
(AP Photo/J. Scott Applewhite, File)
WASHINGTON (AP) — The Supreme Court agreed Friday to decide whether state laws that seek to regulate Facebook, TikTok, X and other social media platforms violate the Constitution.
The justices will review laws enacted by Republican-dominated legislatures and signed by Republican governors in Florida and Texas. While the details vary, both laws aim to prevent the social media companies from censoring users based on their viewpoints.
The court's announcement, three days before the start of its new term, comes as the justices continue to grapple with how laws written at the dawn of the digital age, or earlier, apply to the online world.
The justices had already agreed to decide 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.
Separately, the high court also could consider a lower-court order limiting executive branch officials’ communications with social media companies about controversial online posts.
In all, the justices added 12 cases Friday that will be argued during the winter. They include:
— A dispute over the FBI's no-fly list. The appeal came from the Biden administration in a case involving an Oregon man who once was on the list, but had been removed years ago. A federal appeals court said he could continue his lawsuit because the FBI never disavowed his initial inclusion.
— A copyright case that involves a hit for the hip-hop artist Flo Rida in which he made use of someone else's song from the 1980s. Music publishing companies that were sued for copyright infringement over the 2008 song “In the Ayer” are challenging a lower court ruling against them.
— A plea by landowners in southeast Texas who want the state to compensate them for effectively taking their property. Their lawsuit claims that a successful project to renovate Interstate 10 and ensure it remains passable in bad weather results in serious flooding on their properties in heavy rainfall.
The new social media cases follow conflicting rulings by two appeals courts, one of which upheld the Texas law, while the other struck down Florida's statute. By a 5-4 vote, the justices kept the Texas law on hold while litigation over it continues.
But the alignment was unusual. Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett voted to grant the emergency request from two technology industry groups that challenged the law in federal court.
Justices Clarence Thomas, Samuel Alito, Elena Kagan and Neil Gorsuch would have allowed the law to remain in effect. In dissent, Alito wrote, “Social media platforms have transformed the way people communicate with each other and obtain news.”
Proponents of the laws, including Republican elected officials in several states that have similar measures, have sought to portray social media companies as generally liberal in outlook and hostile to ideas outside of that viewpoint, especially from the political right.
The tech sector warned that the laws would prevent platforms from removing extremism and hate speech.
“Online services have a well-established First Amendment right to host, curate and share content as they see fit," Chris Marchese, the litigation director for the industry group NetChoice, said in a statement. "The internet is a vital platform for free expression, and it must remain free from government censorship. We are confident the Court will agree.”
Without offering any explanation, the justices had put off consideration of the case even though both sides agreed the high court should step in.
The justices had other social media issues before them last year, including a plea the court did not embrace to soften legal protections tech companies have for posts by their users.
Supreme Court will decide if Texas and Florida can regulate social media to protect
WASHINGTON (AP) — The Supreme Court agreed Friday to decide whether state laws that seek to regulate Facebook, TikTok, X and other social media platforms violate the Constitution.
The justices will review laws enacted by Republican-dominated legislatures and signed by Republican governors in Florida and Texas. While the details vary, both laws aim to prevent the social media companies from censoring users based on their viewpoints.
The court's announcement, three days before the start of its new term, comes as the justices continue to grapple with how laws written at the dawn of the digital age, or earlier, apply to the online world.
The justices had already agreed to decide 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.
Separately, the high court also could consider a lower-court order limiting executive branch officials’ communications with social media companies about controversial online posts.
In all, the justices added 12 cases Friday that will be argued during the winter. They include:
— A dispute over the FBI's no-fly list. The appeal came from the Biden administration in a case involving an Oregon man who once was on the list, but had been removed years ago. A federal appeals court said he could continue his lawsuit because the FBI never disavowed his initial inclusion.
— A copyright case that involves a hit for the hip-hop artist Flo Rida in which he made use of someone else's song from the 1980s. Music publishing companies that were sued for copyright infringement over the 2008 song “In the Ayer” are challenging a lower court ruling against them.
— A plea by landowners in southeast Texas who want the state to compensate them for effectively taking their property. Their lawsuit claims that a successful project to renovate Interstate 10 and ensure it remains passable in bad weather results in serious flooding on their properties in heavy rainfall.
The new social media cases follow conflicting rulings by two appeals courts, one of which upheld the Texas law, while the other struck down Florida's statute. By a 5-4 vote, the justices kept the Texas law on hold while litigation over it continues.
But the alignment was unusual. Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett voted to grant the emergency request from two technology industry groups that challenged the law in federal court.
Justices Clarence Thomas, Samuel Alito, Elena Kagan and Neil Gorsuch would have allowed the law to remain in effect. In dissent, Alito wrote, “Social media platforms have transformed the way people communicate with each other and obtain news.”
Proponents of the laws, including Republican elected officials in several states that have similar measures, have sought to portray social media companies as generally liberal in outlook and hostile to ideas outside of that viewpoint, especially from the political right.
The tech sector warned that the laws would prevent platforms from removing extremism and hate speech.
“Online services have a well-established First Amendment right to host, curate and share content as they see fit," Chris Marchese, the litigation director for the industry group NetChoice, said in a statement. "The internet is a vital platform for free expression, and it must remain free from government censorship. We are confident the Court will agree.”
Without offering any explanation, the justices had put off consideration of the case even though both sides agreed the high court should step in.
The justices had other social media issues before them last year, including a plea the court did not embrace to soften legal protections tech companies have for posts by their users.
Supreme Court will decide if Texas and Florida can regulate social media to
PROMOTE 'conservative speech'
David G. Savage
Fri, September 29, 2023
The Supreme Court said Friday it will rule on how the 1st Amendment applies to social media and decide whether Texas and Florida can impose heavy fines on Facebook, YouTube and other popular sites for allegedly discriminating against conservatives.
The justices said they would review the new and never-enforced laws from the two largest Republican-controlled states and decide whose rights to free speech are at stake.
Texas lawmakers said the social media sites were conspiring to censor conservative voices and views, sometimes at the behest of the Biden White House.
Texas Gov. Greg Abbott said "conservative speech" was under threat. "It's now the law that conservative viewpoints in Texas cannot be banned on social media," he said upon signing the bill in 2021.
Florida Gov. Ron DeSantis said his state's law would hold accountable the "Big Tech censors" who "discriminate in favor of the dominant Silicon Valley ideology."
The law, 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 suits for damages for "unfair censorship" and large fines if a social media site "deplatforms" a candidate for office, as happened for a time to former President Trump after he continued to spread false claims about the 2020 election.
Both state laws ran into 1st Amendment challenges from the tech industry, and the Supreme Court put them on hold last year in a 5-4 order.
"Throughout our nation’s history, the 1st Amendment’s freedoms of speech and press have protected private entities’ rights to choose whether and how to publish and disseminate speech generated by others," lawyers for the social media sites said in the Texas appeal.
At issue is the basic legal status of social media sites. Are they private companies with full free-speech rights to shape their content, similar to a newspaper or TV network?
Or are they are "common carriers," like telephone companies, with a duty to be equally open to all views and subject to government regulation?
Until now, the 1st Amendment and federal law have been understood to protect free speech online by forbidding regulation by the government or through lawsuits against social media platforms.
But Justice Clarence Thomas has suggested the "dominant digital platforms" sites should be seen as common carriers subject to regulation.
"There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated," he wrote when the court dismissed a case called Biden vs. Knight. Google and Facebook have an enormous reach, he said. "Much like with a communications utility, this concentration gives some digital platforms enormous control over speech."
Netchoice, a coalition of big internet firms that includes Amazon, Google and Meta, sued to block both laws along with the Computer & Communications Industry Assn.
The two federal appeals courts in the South, speaking through Trump appointees, divided on the free-speech issue.
U.S. Appellate 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."
Shortly after Florida adopted its law, Texas passed a measure that 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.
The targets of the law appear to include YouTube, Instagram and TikTok as well as Facebook and X, formerly Twitter. Violators could be subject to daily fines as well as suits brought by Atty. Gen. Ken Paxton.
U.S. Appellate 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 Justice Samuel A. Alito Jr., 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.
Last year, the Supreme Court appeared closely split on the issue. The justices put the Texas law on hold while the appeals continued.
Social media sites insist they are merely exercising "editorial judgment" to remove objectionable material.
They argued it was both unconstitutional and practically impossible for the website to give individualized explanations for every item that is removed.
During six months in 2018, "Facebook, Google, and Twitter took action on over 5 billion accounts or submissions—including 3 billion cases of spam, 57 million cases of pornography, 17 million cases of content regarding child safety, and 12 million cases of extremism, hate speech, and terrorist speech," they told the court.
On Friday, the justices said they had agreed to review both laws. They will hear arguments early next year. The Florida case is Moody vs. NetChoice while the Texas case is NetChoice vs. Paxton.
Trump and 16 Republican-led states filed friend-of-court briefs urging the justices to uphold the Florida law.
The concern over social media is not limited to conservative states.
Last year, the California Legislature adopted measures to protect children and teens online and to require social media sites to disclose their "content moderation practices" involving hate speech, racism, extremism, disinformation and harassment.
“California will not stand by as social media is weaponized to spread hate and disinformation that threaten our communities and foundational values as a country,” Gov. Gavin Newsom said when he signed the bill. “Californians deserve to know how these platforms are impacting our public discourse, and this action brings much-needed transparency and accountability to the policies that shape the social media content we consume every day.”
This story originally appeared in Los Angeles Times.
Supreme Court takes on social media: First Amendment fight over 'censorship' is on the docket
John Fritze, USA TODAY
Updated Fri, September 29, 2023
WASHINGTON – The Supreme Court agreed Friday to decide challenges to laws in Texas and Florida that would limit the ability of platforms like Facebook, YouTube and X to moderate content – entering into a deeply partisan fray that could change the way millions of Americans interact with social media during an election year.
The state laws at issue in the cases, both of which have been temporarily blocked by federal courts, severely limit the ability of social media companies to kick users off their platforms or remove individual posts − even if those posts spread a foreign government's misinformation or provide false medical advice. Trade groups representing the nation's social media companies say the state laws would "transform speech on the internet as we know it today."
“These cases could completely reshape the digital public sphere," said Jameel Jaffer, executive director at the Knight First Amendment Institute. "It's difficult to think of any other recent First Amendment cases in which the stakes were so high.”
But Republican lawmakers in Texas and Florida − including Florida Gov. Ron DeSantis, who is seeking the GOP presidential nomination − argue that social media companies have been too quick to throttle conservative viewpoints and too opaque in explaining how they decide what to remove. That argument reached a fever pitch in 2021, when Twitter and other major platforms suspended former President Donald Trump after the Jan. 6 attack on the U.S. Capitol.
Trade groups representing the companies say the lawswould radically transform social media, making it impossible to cull foreign propaganda, harassment and misinformation. The First Amendment, they say, bars the government from compelling private entities – from newspapers to social networks – from publishing or not publishing content it favors.
“It is high time that the Supreme Court resolves whether governments can force websites to publish dangerous content," said Matt Schruers, president of the Computer & Communications Industry Association. "Telling private websites they must give equal treatment to extremist hate isn’t just unwise, it is unconstitutional, and we look forward to demonstrating that to the court.”
Ethics: Not just Clarence Thomas: Lower courts facing scrutiny over ethics, disclosures, too
But the dominant social networks have come under increasing scrutiny from some on the right and the left in recent years. Justice Clarence Thomas in 2021 compared Twitter, now known as X, and other large social media companies to communication utilities that could be regulated, asserting the concentration in the industry gives digital platforms "enormous control over speech." That interpretation, if it gains traction, could open the companies up to far greater government regulation.
Social media companies have generally denied their content moderation benefits liberals or conservatives. Elon Musk, who owns X, promoted a series of tweets last year that demonstrated how executives at the company struggled with handling posts about a report on Hunter Biden's laptop before the 2020 presidential election. Musk promoted the material in an effort to bolster claims of the political left's grip over Big Tech.
Musk's predecessor, Jack Dorsey, had acknowledged the controversy two years earlier and said the way the company handled the story was "wrong."
The cases put social media front and center on the high court's docket and will be among the closest watched this term. The court is already wrestling several other social media cases, including two that deal with whether elected officials may block voters from their social media accounts. A similar case involving Trump made its way up to the Supreme Court but was dismissed after he left office in 2021.
Decisions in the cases are expected next year.
At the the moment, neither the Florida nor the Texas law are in effect.
A three-judge panel of the U.S. Court of Appeals for the 11th Circuit blocked enforcement of most of Florida's law last year. But the New Orleans-based U.S. Court of Appeals for the 5th Circuit backed the similar Texas law. That created a split in how appeals courts are interpreting the laws.
In May, a 5-4 majority of the Supreme Court blocked Texas from enforcing its law. The decision, on the court's emergency docket, was not accompanied by an opinion.
Impact: How the Supreme Court could alter the way Americans interact on the internet
Justice Samuel Alito, in a dissent joined by Thomas and Justice Neil Gorsuch in that emergency case, wrote that it is "not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies."
Contributing: Jessica Guynn
This article originally appeared on USA TODAY: Supreme Court to decide if states can regulate Facebook, X
Supreme Court agrees to take social media content moderation First Amendment case
Doug Cunningham
Fri, September 29, 2023
The U.S. Supreme Court Friday agreed to hear a social media First Amendment case involving Texas and Florida laws that ban social media companies from banning speech they deem objectionable. Photo by Eric Lee/UPI
Sept. 29 (UPI) -- The U.S. Supreme Court on Friday chose to take a case on whether Florida and Texas laws that ban social media companies from removing content violates the First Amendment protections of the companies to be free of government compelling speech.
It sets the stage for a potentially landmark social media First Amendment ruling on what limits, if any, companies have in moderating the kind of speech allowed on their platforms.
Tech groups NetChoice and the Computer and Communications Industry Association challenged the Texas and Florida laws as unconstitutional because they say the laws compel private speech.
"Online services have a well-established First Amendment right to host, curate and share content as they see fit," NetChoice Litigation Director Chris Marchese said in a statement. "The Internet is a vital platform for free expression, and it must remain free from government censorship. We are confident the court will agree."
The case arises from laws in Texas and Florida designed to stop social media companies from barring former President Donald Trump as some of them did after the Jan. 6, 2021, pro-Trump mob's violent attack on the U.S. Capitol.
Fri, September 29, 2023
The U.S. Supreme Court Friday agreed to hear a social media First Amendment case involving Texas and Florida laws that ban social media companies from banning speech they deem objectionable. Photo by Eric Lee/UPI
Sept. 29 (UPI) -- The U.S. Supreme Court on Friday chose to take a case on whether Florida and Texas laws that ban social media companies from removing content violates the First Amendment protections of the companies to be free of government compelling speech.
It sets the stage for a potentially landmark social media First Amendment ruling on what limits, if any, companies have in moderating the kind of speech allowed on their platforms.
Tech groups NetChoice and the Computer and Communications Industry Association challenged the Texas and Florida laws as unconstitutional because they say the laws compel private speech.
"Online services have a well-established First Amendment right to host, curate and share content as they see fit," NetChoice Litigation Director Chris Marchese said in a statement. "The Internet is a vital platform for free expression, and it must remain free from government censorship. We are confident the court will agree."
The case arises from laws in Texas and Florida designed to stop social media companies from barring former President Donald Trump as some of them did after the Jan. 6, 2021, pro-Trump mob's violent attack on the U.S. Capitol.
Left to right, Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas and Chief Justice John Roberts. Photo by Eric Lee/UPI
"It is high time that the Supreme Court resolves whether governments can force websites to publish dangerous content. Telling private websites they must give equal treatment to extremist hate isn't just unwise, it is unconstitutional, and we look forward to demonstrating that to the court," CCIA President Matt Schruers said in a statement.
He added that for 200 years courts have upheld First Amendment protections against government attempts to compel private speech.
At issue is the power of government to tell private companies what they can and can't do when it comes to political speech on platforms that are privately owned.
The First Amendment prohibits government from banning free speech but private companies have been largely free to govern the type of speech they allow on their platforms.
Texas Attorney General Ken Paxton and Florida Attorney General Ashley Moody said social media companies infringe on right-wing First Amendment rights by barring certain content for breaking company content moderation rules.
In May, the Supreme Court declined to rule on a law that protects Internet companies form lawsuits based on content posted by social media platform users.
The case in question then involved allegations that YouTube was liable for suggesting videos that promoted militant Islam.
U.S. Supreme Court to consider parts of Florida law restricting social media platforms
Jim Saunders
Fri, September 29, 2023
Dreamstime/TNS
The U.S. Supreme Court said Friday it will take up a First Amendment fight about a 2021 Florida law that placed restrictions on major social-media companies.
The Supreme Court said it will hear cases involving the Florida law and a similar measure in Texas. Both sides in the Florida case, along with the U.S. solicitor general, had urged justices to take up the issues.
The industry groups NetChoice and the Computer & Communications Industry Association challenged the constitutionality of the Florida law, which placed restrictions on large social-media companies such as Facebook and Twitter, now known as X. Gov. Ron DeSantis made a priority of the issue after Twitter and Facebook blocked former President Donald Trump from their platforms after Trump supporters stormed the U.S. Capitol on Jan. 6, 2021.
U.S. District Judge Robert Hinkle issued a preliminary injunction against the measure, describing it as “riddled with imprecision and ambiguity.” The 11th U.S. Circuit Court of Appeals last year upheld much of the preliminary injunction, though it said parts of the law could take effect.
READ MORE: Federal judge blocks Florida’s new social media law targeting ‘big tech’ companies
“We are pleased the Supreme Court agreed to hear our landmark cases,” Chris Marchese, NetChoice’s litigation director, said in a statement Friday. “Online services have a well-established First Amendment right to host, curate and share content as they see fit. The internet is a vital platform for free expression, and it must remain free from government censorship. We are confident the court will agree.”
But in a filing last year at the Supreme Court, Florida’s attorneys said the 11th U.S. Circuit Court of Appeals’ decision “dealt a mortal blow to the power of governments, state and federal, to protect their citizens’ access to information in the modern public square.”
“Under the Eleventh Circuit’s reasoning, social-media behemoths have a First Amendment right to cut any person out of the modern town square, for any reason, even when they do not follow their own rules or otherwise act in bad faith,” the filing said. “That ruling strips states of their historic power to protect their citizens’ access to information, implicating questions of nationwide importance.”
The Supreme Court’s order said justices would review two parts of the Florida law that the 11th Circuit blocked. U.S. Solicitor General Elizabeth Prelogar and other Department of Justice attorneys in August urged the court to consider those issues and to uphold the injunction.
One of those parts would place restrictions on content-moderation by the social-media companies. The law, for example, would prevent platforms from banning political candidates from their sites and require companies to publish — and apply consistently — standards about issues.
In contrast to the 11th Circuit, the 5th U.S. Circuit Court of Appeals supported similar restrictions in the Texas law.
“When a social-media platform selects, edits, and arranges third-party speech for presentation to the public, it engages in activity protected by the First Amendment,” Justice Department attorneys wrote in a brief. “That activity, and the platforms’ business practices more generally, are not immune from regulation. But here, the states have not articulated interests that justify the burdens imposed by the content-moderation restrictions under any potentially applicable form of First Amendment scrutiny.”
The Justice Department also urged the Supreme Court to take up another part of the Florida law that the brief said “requires a platform to provide an individualized explanation to a user if it removes or alters her posts.” Like with the contrast on the content-moderation issue, the 5th Circuit upheld a similar requirement in the Texas law.
In saying it will focus on the two issues, the Supreme Court does not appear likely to go as far as the tech-industry groups wanted, which was to block the entire Florida law. It was not clear Friday when the Supreme Court will hold arguments.
Supreme Court to hear cases on Florida, Texas social media laws
Ella Lee
Fri, September 29, 2023
Supreme Court to hear cases on Florida, Texas social media laws
The Supreme Court announced Friday it will hear two cases stemming from controversial laws in Texas and Florida regulating social media platforms’ content moderation decisions.
The laws aim to prohibit social media companies from banning users based on political views, even if users violate platform policies, essentially limiting companies from being able to enforce their policies.
The high court will consider whether the laws’ content moderation restrictions and their “individualized-explanation requirements” are compliant with the First Amendment.
Any outcome at the Supreme Court could have resounding implications for online speech after two lower courts, the 5th Circuit and 11th Circuit appeals courts, had conflicting opinions on blocking and upholding the two states’ similar laws.
The laws were challenged in court by two tech industry groups, the Computer and Communications Industry Association (CCIA) and NetChoice. They said the social media laws violate private companies’ First Amendment right to decide what speech to host.
The tech groups cheered the court’s decision to hear the cases.
“This order is encouraging. It is high time that the Supreme Court resolves whether governments can force websites to publish dangerous content. Telling private websites they must give equal treatment to extremist hate isn’t just unwise, it is unconstitutional, and we look forward to demonstrating that to the Court,” CCIA President Matt Schruers said in a statement.
“Online services have a well-established First Amendment right to host, curate and share content as they see fit,” NetChoice litigation director Chris Marchese said in a statement. “The internet is a vital platform for free expression, and it must remain free from government censorship. We are confident the Court will agree.”
The 11th U.S. Circuit Court of Appeals decided to uphold a block on major provisions in Florida’s law, siding with the tech industry groups. The panel agreed that no matter the extent of technological advancement, the “basic principles of freedom of speech and the press” remain, including for private corporations.
But the 5th U.S. Circuit Court of Appeals reached the opposite conclusion in the Texas case. Judge Andrew Stephen Oldham, an appointee of former President Trump, wrote in the panel’s opinion that the First Amendment doesn’t guarantee corporations the “unenumerated right to muzzle speech.”
In Florida’s petition to the Supreme Court to hear its case, Florida Attorney General Ashley Moody (R) said the 11th Circuit’s decision to block the state’s law “squarely conflicts” with the 5th Circuit’s ruling for Texas, which upheld the state’s similar law. The trade associations also appealed to the Supreme Court.
At least four of the nine justices had to agree to take up the cases, a decision that came with little surprise after several justices previously indicated interest.
Last May, the Supreme Court decided 5-4 to take emergency action, pausing enforcement of the Texas law until the 5th Circuit could more fully consider the case. Justice Samuel Alito — writing for himself, Justice Clarence Thomas and Justice Neil Gorsuch — said in a dissenting opinion that the case posed “novel legal questions” of “great importance that will plainly merit this Court’s review.” Justice Elena Kagan, one of the court’s liberals, did not join Alito’s opinion but indicated she agreed with the three conservative justices’ votes.
The justices’ request for the Biden administration to weigh in on the case also teased their interest in taking it up.
In August, Solicitor General Elizabeth Prelogar asked the Supreme Court to overturn the 5th Circuit’s decision to uphold the Texas law, suggesting the conflicting opinions warrant a Supreme Court review.
“Considering the two laws together would give the Court the fullest opportunity to address the relevant issues,” she wrote.
Zach Schonfeld contributed.
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