Justices appear skeptical of states' social media censorship laws

The U.S. Supreme Court’s justices appeared to question the breadth of two state laws that seek to regulate social media companies’ ability to moderate content on their platforms. 

During oral arguments Monday, both conservative and liberal justices seemed concerned about the impact such laws would have on other technology providers and worried that they infringe on the First Amendment.

“I wonder,” Chief Justice John Roberts asked, “since we're talking about the First Amendment, whether our first concern should be with the state regulating what, you know, we have called the modern public square?”

Florida Solicitor General Henry Whitaker replied that his state’s law is focused on applying content moderation policies consistently, and that it has a “First Amendment interest in ensuring the free dissemination of ideas.” Texas Solicitor General Aaron Neilson said later in the proceedings that his state’s law goes “nowhere near the heartland of the First Amendment.” He said that without some curbs on social media censorship, there would be “no public square to speak of.”

Florida and Texas each passed legislation in 2021 to protect residents from what lawmakers decried as the censorship of conservative viewpoints on social media. The laws were designed to prevent discrimination and what Texas Gov. Greg Abbott called a “dangerous movement … to silence conservative viewpoints and ideas.”

Both laws were quickly challenged and are on hold as they wind their way through the courts. A federal district judge blocked much of the Florida law, and an appeals court left that ruling in place, prompting the state to appeal to the Supreme Court. A federal judge put Texas’ law on hold, but an appeals court reversed that decision, prompting a coalition of tech groups to ask the Supreme Court to hear the case.

On Monday, Justice Samuel Alito joined Roberts and the other justices in wrestling with the laws’ implication for the First Amendment’s free speech protections. He asked whether social media companies moderating user posts constitutes censorship. Paul Clement, a lawyer for NetChoice, and U.S. Solicitor General Elizabeth Prelogar, responded that it is only censorship when the government engages in it. Private businesses, they said, can do such moderation.

In fact, Clement argued, such moderation is essential given how much content is swirling around online.

“Given the vast amount of material on the internet in general and on these websites in particular,” he said, “exercising editorial discretion is absolutely necessary to make the websites useful for users and advertisers.”

Clement also warned during oral arguments in the Texas case of the dramatic consequences that would follow should both laws be allowed to stand. He said that the platforms may have to leave the states, alter their business models or introduce other “burdensome” requirements. 

Meanwhile, the lawyers for Florida and Texas argued that social media platforms are “common carriers,” like phone companies, that transport goods, people or information under a regulatory body, and so cannot discriminate against users. Whitaker said that means the companies cannot act as a “choke point to silence those they disfavor.” Debate over whether internet service providers are common carriers is a hallmark of the net neutrality debate that has riled Congress and the Federal Communications Commission for nearly a decade.

But the justices did not appear convinced by the common carrier argument, a trend reflected across the ideological spectrum. Justice Amy Coney Barrett and others said that the platforms exercise editorial control like newspapers, and so can choose the speech that they host.

“When it comes to platforms that are the traditional social media platforms like YouTube, Instagram, you know, TikTok, Twitter/X,” she said, “it all rides—it all turns on editorial control.”

The breadth of these laws could impact companies far beyond social media platforms, opponents of the legislation have warned, an argument that appeared to win favor with some of the justices on Monday. 

Using the example of the online marketplace Etsy, Justice Sonia Sotomayor warned that it and similar websites could be subject to the law in Florida if it limits user content to only sell vintage clothes, for example. That would be a form of censorship, she argued, under a “broad application of this law.”

In response, Whitaker agreed that the law might apply to Etsy, not in the regulation of the sale of goods, but in the moderation of user-generated content like text and descriptions on the website. Etsy allows consumers to leave reviews of products and produce other content, but retains the right to “use, display, edit, modify, reproduce, distribute, store, and prepare derivative works” of it.

“This is so, so broad,” Sotomayor said. “It’s covering almost everything. But the one thing I know about the internet is its variety is infinite.”

Justice Clarence Thomas said the laws were also broad in their terminology, with the Florida bill text including terms like “shadowbanning” and “post-prioritization,” which he said have not yet been properly defined. “We’re not talking about anything specific,” Thomas said, as he asked for more specificity on what speech is being censored.

After the oral arguments, opponents of the legislation appeared buoyed by the justices’ reception of their arguments. Still, they warned that if either law is upheld, it could shape the future of free speech on the internet.

“If these laws are allowed to go into effect, it would either be chaos or basically nothing on the internet, and it would mean that there is no curation,” Vera Eidelman, a staff attorney at the American Civil Liberties Union, said at a press conference. “I don't really want to see what that would look like. Or it would mean just offering basically puppies all day, which isn't the worst thing in the world, but it's pretty limited.”