US Supreme Court justices on Monday expressed reservations about Republican-backed laws in Florida and Texas that aim to curb the power of social media platforms to restrict objectionable content, but signaled they may not be ready to block them in their entirety.
During nearly four hours of arguments, the justices expressed concern that the laws could undermine platforms’ editorial discretion, violating free speech protections. But they also indicated they could allow the laws to regulate some non-significant Internet services, such as email, direct messaging and car sharing.
The laws were challenged by tech industry trade groups NetChoice and the Computer & Communications Industry Association, whose members include Meta, Alphabet, TikTok and Snap. No law is in force.
What is at issue is whether these state laws regulating content moderation practices by major platforms — born out of Republican concerns about perceived bias against conservative voices — violate the companies’ First Amendment free speech protections of the United States Constitution. .
Conservative Justice John Roberts, who presides over the Supreme Court, asked Henry Whitaker, Florida’s legal representative, “whether our primary concern should be that the state regulate what, you know, we call the modern public square.” Whitaker argued that Florida law regulates conduct, not speech.
Conservative Justice Brett Kavanaugh drew attention to the fact that previous Supreme Court rulings “underscore that editorial control is fundamentally protected by the First Amendment.”
The cases give judges an opportunity to decide whether the First Amendment protects editorial arbitration by social media platforms and prohibits governments from forcing companies to publish content against their will.
The companies said that without this arbitration — including the ability to block or remove content or users, prioritize some posts over others or include additional context — their sites would be overrun with spam, bullying, extremism and hate speech.
Progressive Justice Elena Kagan said, referring to Florida’s measure, that judges may not want to “allow this law to go into effect because of its unconstitutional applications.”
Kagan added, however, that blocking it completely could also be a problem if “we assume that this statute covers a variety of things similar to Gmail and direct messaging and Uber and things that don’t create voice products.”
Conservative Justice Amy Coney Barrett said such concerns have intensified because lower courts have not had a chance to fully review cases before they reach the Supreme Court.
“I mean, we don’t have a lot of information on this and it’s a long statute — and it makes me a little nervous,” Barrett told Paul Clement, an attorney representing NetChoice.
Decisions upholding the laws could lead to a patchwork of state measures regulating content moderation, which would increase the complexity and costs of compliance for platforms.
President Joe Biden’s administration, which opposes the Florida and Texas laws, has argued that content moderation restrictions violate the First Amendment by forcing platforms to feature and promote content they deem objectionable.
Conservative Justice Samuel Alito, in a pointed speech, asked U.S. Attorney General Elizabeth Prelogar whether the term “content moderation” was a euphemism for censorship, echoing concerns expressed by officials in Florida, Texas and conservative commentators .
The Supreme Court has a 6-3 conservative majority.
Clement told the justices that the platforms want to promote open dialogue, adding that, contrary to what the states have claimed, “conservative voices have actually flourished on these sites.” According to him, maintaining the laws would be dangerous for young people – whose use of social media is increasingly studied for its possible harmful impact – because protective measures could be undermined.
“If we had suicide prevention, we should have suicide promotion to avoid viewpoint discrimination. This shouldn’t even be a discussion,” Clement said.
Florida law requires large platforms to “host certain speech that they would otherwise prefer not to host” by prohibiting censorship or banning of a political candidate or “journalistic enterprise.”
The Texas law prohibits social media companies with at least 50 million monthly active users from moving to “censor” users based on “viewpoints” and allows users or the Texas attorney general to file lawsuits to make respect the law.
Florida is trying to revive its law after the Atlanta-based federal Court of Appeals for the 11th Circuit ruled overwhelmingly against it. Industry groups are appealing the New Orleans-based 5th Circuit Court of Appeals’ ruling that upheld the Texas law.
The Supreme Court’s decision is expected by the end of June.
Source: Terra
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