by Michael Nevradakis, Ph.D. The Defender
The U.S. Supreme Court today said it will hear cases challenging Texas and Florida laws that prohibit social media companies from censoring content posted on their platforms, in what The New York Times said will lead to “a major ruling on how the First Amendment applies to powerful tech platforms.”
The U.S. Supreme Court today said it will hear cases challenging Texas and Florida laws that prohibit social media companies from censoring content posted on their platforms, in what The New York Times said will lead to “a major ruling on how the First Amendment applies to powerful tech platforms.”
The two laws, both passed in 2021, and the Supreme Court’s decision to consider them, “could have nationwide repercussions for how social media — and all websites — display user-generated content,” CNN reported.
If upheld, the laws could open the door to more state legislation with similar obligations for social media sites.
Texas House Bill 20 (HB 20) and Florida Senate Bill 7072 (SB 7072) allow users to “sue social media platforms over allegations of political censorship” and “restrict companies from taking down or demoting certain kinds of content even when the platforms may decide it violates their terms of service,” according to CNN.
The laws also could make it harder for platforms to remove what they determine is “misinformation, hate speech or other offensive material,” CNN added.
According to USA Today, the laws “limit” platforms’ ability to regulate content, “even if those posts spread a foreign government’s misinformation or provide false medical advice.”
Two tech industry trade groups, NetChoice and the Computer & Communications Industry Association, challenged the laws in 2021, saying that tech companies enjoy First Amendment protection which prevents the government from telling them “whether and how to disseminate speech,” the Times reported.
Both states’ laws were temporarily blocked by federal courts pending the completion of the appeals process.
According to The Associated Press (AP), the court’s announcement came three days before the start of its new term. A decision is expected in 2024, according to USA Today.
W. Scott McCollough, an Austin, Texas-based technology attorney, welcomed the news.
“I’m glad the Supreme Court picked up the case, because what both Texas and Florida were doing is, they required individualized protection — a consumer protection measure,” he said. “It required them to inform the parties that ‘we’ve done something to you.’”
McCollough added:
“The two states here recognize that these platforms have immense power. They purport to have the right to act unilaterally and subjectively to restrict posts as part of content moderation. So, the states are requiring them to give notice to the people they are censoring and tell them why they did it. This is reasonable at its face.
“If nothing else, I’ve always believed that these aspects of these two state statutes, in theory, should not have a First Amendment problem. States have forever engaged in consumer protection matters. Every state has consumer protection statutes.”
Laws intended to ‘combat Silicon Valley censorship’
Texas HB 20 regarding “censorship of or certain other interference with digital expression, including expression on social media platforms or through electronic mail messages,” passed on Sept. 9, 2021, and was set to take effect on Dec. 2, 2021.
According to Politico, HB 20 “would allow both the state of Texas and individual Texans to sue companies if they ‘censor’ an individual based on their viewpoints or their geographic location by banning them or blocking, removing or otherwise discriminating against their posts.” It would apply to platforms with at least 50 million active users.
Florida SB 7072, Social Media Platforms, also known as the Stop Social Media Censorship Act, was to take effect July 1, 2021. It sought to regulate the content moderation policies of social media platforms, barring them from banning users based on their political ideology.
According to the Times, “The sites in question are largely barred from removing posts based on the viewpoints they express, with exceptions for the sexual exploitation of children, incitement of criminal activity and some threats of violence.”
Supporters of the Florida and Texas laws “argue that the measures are needed to combat what they called Silicon Valley censorship,” including on issues like COVID-19 and claiming election fraud, the Times also reported.
Challenges to both laws resulted in conflicting rulings in federal courts.
In May 2022, the U.S. Court of Appeals for the 11th Circuit largely upheld a preliminary injunction freezing enforcement of the Florida law.
Also in May 2022, the U.S. Supreme Court temporarily blocked enforcement of the Texas law pending completion of the appeals process. However, in September 2022, the U.S. Court of Appeals for the 5th Circuit reversed earlier court rulings that had blocked the law.
Judge Andrew S. Oldham of the 5th Circuit wrote, “Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. The platforms are not newspapers. Their censorship is not speech.”
McCollough agreed, saying that prior legal precedent holding that “newspapers don’t have to post everybody’s letter to the editor” was based on the rationale that “there is not enough space in a newspaper to post everybody’s letter.”
The 5th Circuit is considering two other cases with First Amendment and free speech implications: Missouri et al. v. Biden et al. and Kennedy et al. v. Biden et al., in which Children’s Health Defense (CHD) is a plaintiff. The 5th Circuit heard oral arguments in Missouri et al. v. Biden et al. last month.
In July, the two cases were consolidated.
Legal experts said the consolidated case is likely headed to the Supreme Court after Associate Justice Samuel Alito earlier this month lifted an injunction that temporarily blocked certain Biden administration offices and officials from contact with social media giants.
The injunction, requested in the Missouri v. Biden case, on July 4 was granted by Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana Monroe Division and was later upheld under a Sept. 8 ruling by the 5th Circuit.
Justice Alito paused it after the U.S. Department of Justice (DOJ) submitted an emergency filing asking the Supreme Court to stay the injunction while the high court considers whether to hear the case.
The Supreme Court’s alignment in its 5-4 vote temporarily blocking the Texas law, was “unusual,” according to the AP, with liberal justice Elena Kagan joining three conservative justices — Samuel Alito, Neil Gorsuch and Clarence Thomas — in the dissenting opinion that would have allowed the law to remain in effect.
In the dissent, Justice Alito wrote, “Social media platforms have transformed the way people communicate with each other and obtain news. At issue is a groundbreaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”
Kim Mack Rosenberg, CHD’s acting general counsel, highlighted the significance of the constitutional issues the Supreme Court will consider:
“We will be watching the two First Amendment cases out of Texas and Florida carefully. In these two cases, the social media companies are claiming their First Amendment rights are violated by these laws.
“In several cases in which CHD is involved, we argue that the social media platforms and the U.S. government violated the First Amendment rights of those posting to social media and the consumers of the posts.”
One of several legal matters at hand in the two cases pertains to Section 230 of the Communications Decency Act. Passed in 1996, Section 230 gives internet providers legal protections for hosting, moderating and removing most user content.
According to the New York Post, Section 230 was designed to prevent internet companies from being treated as publishers by shielding them from lawsuits by anyone claiming to be wronged by content posted by another user — even though the platforms typically engage in moderation of user-posted content.
In his dissent, Justice Alito wrote, “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”
Social media platforms have long argued that they are not publishers, in order to avoid legal liability for content posted by their users. However, in other instances, these same companies have claimed, in court, that they are publishers and have the right to exercise editorial control over content on their platforms.
For instance, Facebook’s parent company, Meta, recently argued that a subpoena from the District of Columbia’s attorney general interfered with its ability to exercise editorial control over content on its platform.
“Facebook has long had the same public response when questioned about its disruption of the news industry: it is a tech platform, not a publisher or a media company,” as the Guardian reported in 2018.
But in legal arguments, Facebook has repeatedly argued, it’s “a publisher, and a company that makes editorial decisions, which are protected by the First Amendment.”
Social media platforms “claim that they are not publishers and that they should not be liable for the information that shows up on their platforms,” McCollough said.
“You’re either a publisher or you’re not a publisher, and they’ve always said they’re not publishers. So why are they saying they’re publishers now? Are they publishers for the First Amendment and not publishers for Section 230? Explain that one,” he added.
Social media platforms’ First Amendment rights are also at issue. In a brief submitted to the Supreme Court, the State of Texas argued that HB 20 does not affect social media platforms’ free speech rights because “no reasonable viewer could possibly attribute what a user says to the Platforms themselves.”
“Given the Platforms’ virtually unlimited capacity to carry content, requiring them to provide users equal access regardless of viewpoint will do nothing to crowd out the Platforms’ own speech,” the brief also stated.
According to McCollough, “the big sexy issue” in this case involves content moderation. “Can a state basically prohibit discrimination based on viewpoint? And it ultimately comes down to whether, when these platforms are engaging in so-called content moderation, whether that is them ‘speaking’ — if that is a form of speech,” he said.
“We have always contended that that is not speech. It’s conduct. It’s the consumer, the one who is doing the posting, that is engaging in speech. By taking down speech that the platform may not approve of, that is not speech by the platform,” he added.
A policy principle known as common carriage is also implicated. The Communications Act of 1934, for instance, classifies telephone companies as “common carriers,” requiring those companies to make their services available to the public at affordable rates and regardless of viewpoint or other factors.
In a previous legal brief, Texas argued that social media platforms are “the twenty-first century descendants of telegraph and telephone companies: that is, traditional common carriers” — that must generally accept all customers without viewpoint discrimination.
In 2021, Justice Thomas compared social media platforms to communication utilities that are regulated under common carrier laws, on the basis that concentration in the industry gives these companies “enormous control over speech.”
McCollough said, “When you hold out to indiscriminately serve the public on uniform terms and conditions — in other words, if you say I’ll cover it if you just accept my pre-published terms and conditions, then that basically makes you a common carrier.”
The federal government has also asserted its own purported First Amendment rights.
Solicitor General Elizabeth B. Prelogar argues that lawsuits challenging government attempts to regulate social media content violate the First Amendment on the basis that the office of the president has a “bully pulpit to seek to persuade Americans … to act in ways that the President believes would advance the public interest.”
The Wall Street Journal reported that the Supreme Court asked the DOJ for its views regarding the Florida and Texas laws “as is typical in cases involving federal interests.” In a brief, Prelogar urged the court to hear the cases.
“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,” she wrote, adding that “the act of culling and curating the content that users see is inherently expressive, even if the speech that is collected is almost wholly provided by users.”
Chris Marchese, litigation director for NetChoice, said “Online services have a well-established First Amendment right to host, curate and share content as they see fit.”
And Matt Schruers, president of the Computer & Communications Industry Association, said, “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.”
Tech companies, government using variation of ‘too big to fail’ argument
McCollough told The Defender that what the parties will be briefing and arguing is whether the two state statutes’ content moderation restrictions comply with the First Amendment — in other words, each state’s prohibition against viewpoint discrimination and whether that violates the First Amendment.
The Supreme Court will also hear arguments related to the “individualized explanation requirements” and the extent to which they “comply with the First Amendment.”
“What the solicitor general argued is that these platforms are just way too big,” McCollough said. “They have so many posts that it would be so burdensome on them to be reasonable with their consumers, and that this violates the First Amendment.”
McCollough called this “a variation of the ‘too big to fail’ argument … They’re too big, they do so much, that they just can’t be bothered with an individualized explanation.”
According to McCollough, the Supreme Court’s decision will have major implications for contemporary understandings of free speech and First Amendment rights.
“If you look at the position of the solicitor general and, therefore, the U.S. government, they are saying that the government has a right to free speech, the platforms have a right to free speech, but the people do not have a right to free speech.”
“From a policy perspective, what is the message being sent to Americans? Sit down, shut up, there’s nothing you can do about it, there’s nothing the state legislature can do about it,” he said. “And if they are right about the First Amendment, there’s nothing Congress can do about it.”
“Don’t sit down, don’t shut up, and yes, there is something you can do about it,” he said.