On 26 February 2024, the Supreme Court went into a “marathon four-hour session,” as Texas’s and Florida’s laws around blocking biassed social media censorship were debated as a First Amendment (freedom of speech) violation following a lawsuit filed by NetChoice. NetChoice is representing the world’s largest social media platforms such as Meta, TikTok and Pinterest who have been accused of “liberal bias” by Florida and Texas. Notably, Trump was banned from X (formerly Twitter) and YouTube after the 6 January riot on Capitol Hill; a censorship decision labelled as biassed by Conservatives. With the 2024 elections approaching, both sides’ arguments must be well understood, as the importance of content moderation, bias and the spread of misinformation on social media becomes increasingly apparent. Which is more dangerous to freedom of speech: restricting social media platform’s freedom to restrict content or restricting the expression of users of these platforms?
The two cases are Moody v. NetChoice which addresses Florida’s law, and NetChoice v. Paxton which targets a Texas law. Carl Szabo, a general counsel of NetChoice has stated that “These cases are going to define the future of the Internet.” Moody v. NetChoice is over the 2021 law in Florida “that prevents platforms from ‘censoring’ certain political candidates and media outlets by means of demonetization or removal.” The alleged consequences of this is how it would limit the ability to remove misinformation. Similarly, NetChoice v. Paxton “broadly prohibits social media platforms from “censoring on the basis of user viewpoint, user expression, or the ability of a user to receive the expression of others” in Texas. NetChoice argues the law unconstitutionally restricts their ability to decide what content is published on their platforms.
One must understand Florida’s and Texas’s arguments in the context of conservative concern over liberal bias before reviewing commentary during the Supreme Court’s session. President Trump’s posts on 6 January 2021 led to him getting banned from Facebook and X after civilians stormed Capitol Hill. This was allegedly over the fear that President Trump would cause more unrest with his social media use. Texas Governor Greg Abott stated “freedom of speech is under attack in Texas,” and accused social media companies of silencing conservative ideas. Lawyers from both Texas and Florida have accused these platforms of censoring specifically conservative views. John Whitehead, a founder of the Rutherford Institute, a conservative-leaning non-profit group, stated that social media is made to make you think and debate, and that “debating is key, not eliminating.” This argument suggests viewers who use social media should be able to differentiate between right and wrong, such as refraining from violent protests and unrest such as the storm of Capitol Hill. However, social media companies can claim to reserve the right to freedom of speech, which is protected by the First Amendment, creating a key legal barrier in Texas’s and Florida’s actions.
The Supreme Court thus held a session on 26 February 2024 and faced several challenges. One key challenge is conceptualising social media. Should social media enjoy the same privileges as newspapers where they can edit information under First Amendment protection or is it more similar to “old time phone companies, universally accessible without filtering? During the session, Supreme Court justice Amy Coney Barrett asked, “If you have an algorithm to do it, is it not speech?”
Meanwhile, Justice Samuel Alito Jr. was not sure if modern social media fit either concept. Social media companies are relying on Herald’s victory in the Supreme Court case of Miami Herald v. Tornillo in 1974, which was filed after Florida “tried to force the newspaper to carry op-eds it didn't want to publish.” This case, however, sides more with conceptualising modern day social media as having the First Amendment privileges of newspapers.
Florida’s Solicitor General Henry C. Whitaker disagreed, stating to the justices that “the platforms do not have a First Amendment right to apply their censorship policies in an inconsistent manner and to censor and deplatform certain users.” These contradicting arguments rely on a clear conceptualization of social media, an obstacle the justices will need to decide on before making a ruling.
If social media censorship can be classified as editing in the press, for instance, the White House defines the First Amendment as: “The First Amendment provides that Congress make[s] no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.”
Liberal Justice Elena Kagan, asked why it would not be a “classic First Amendment violation” to restrict private companies from enforcing content moderation policies. However, returning to Solicitor General Henry Whitaker’s argument, the inconsistency of censorship weakens the pleading of the First Amendment argument because it inherently restricts the freedom of speech of certain politicians. With the 2024 U.S. elections approaching, it is apparent why the Supreme Court Justices entered a four hour session over this legal matter.
While censorship protects social media users from dangerous posts such as those from terrorist groups, it can also give leeway to bias. The issue with Florida’s and Texas’s laws is that the broadness would restrict censorship that is needed for the safety of users in light of terrorist groups attempting to reach people via social media. This presents another integral dilemma for the justices—how broad should laws banning censorship be?
Social media is a key platform in the 21st century for citizens and politicians alike to voice their opinions, making this ruling one of the most important in the history of law around social media. A decision is estimated to be expected from the Supreme Court by June. Both laws in Florida and Texas are held as pending until then.