Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.
The Supreme Court on Friday said it would wade into the future of free speech online and decide whether laws passed in Texas and Florida can restrict social media companies from removing certain political posts or accounts.
The Supreme Court’s decision to accept the significant social media cases was announced alongside the addition of 10 other cases to the docket for the upcoming term, commencing on Monday. Prior to this, the court had announced its intention to address contentious matters such as gun regulations, voting rights, and the authority of federal agencies. These cases will be heard amidst mounting pressure from Democratic lawmakers for the justices to address ethical concerns within their ranks, including potential conflicts of interest in some of the cases.
Tech industry groups, whose members include Facebook and Google’s YouTube, asked the court to block Texas and Florida laws passed in 2021 that regulate companies’ content-moderation policies. The companies say the measures are unconstitutional and conflict with the First Amendment by stripping private companies of the right to choose what to publish on their platforms.
The court’s review of those laws will be the most high-profile examination to date of allegations that Silicon Valley companies are illegally censoring conservative viewpoints. Those accusations reached a fever pitch when Facebook, Twitter and other companies suspended former Donald Trump’s accounts in the wake of the Jan. 6, 2021 attack on the U.S. Capitol.
The future of democracy and elections, along with the crafting of new laws governing social media and misinformation, may face significant implications due to the justices’ ruling. This is particularly important as Americans increasingly depend on social media for reading and discussing political news. Additionally, policymakers in Congress and statehouses nationwide may be greatly affected by this ruling.
As Congress has remained deadlocked on those issues, states are playing a larger role in governing digital privacy, artificial intelligence and social media. Democrats largely have argued that the companies are not doing enough to root out hate speech and other harmful content online, and they have passed laws in California and New York to force greater transparency of the companies’ rules and decisions.
Conflicting rulings on state authority to restrict a business’s control over content on its social media platform have been delivered by appeals court judges, all of whom were nominated by Republican presidents.
The Biden administration made a plea to the Supreme Court, urging them to consider the social-media case and block the implementation of the Texas and Florida laws.
According to Solicitor General Elizabeth B. Prelogar, the process of selecting and organizing the content that users view is inherently expressive, despite the fact that the majority of the speech comes directly from users.
The First Amendment is clearly implicated when a government requirement forces covered platforms, whose sole products are displays of expressive content, to showcase different content. This can include incorporating content they want to exclude or organizing content in a different manner.
The First Amendment primarily safeguards individuals from government interference in their freedom of speech. Additionally, courts have recognized the authority of private entities such as newspapers and broadcasters to regulate the content they choose to publish and distribute. This includes granting editors the right to withhold publication of material they deem unfit for dissemination.
The Texas law, signed by Republican Gov. Greg Abbott, allows state residents and the attorney general to sue large social media companies if they believe they were unfairly banned or censored from a platform. A similar Florida law would penalize social media companies for blocking a politician’s posts.
Last spring, in a 5-4 vote, the Supreme Court prevented the Texas law from taking effect while the litigation continues.
Justice Samuel A. Alito Jr., along with Justices Clarence Thomas and Neil M. Gorsuch, expressed in a dissent that social media platforms have revolutionized interpersonal communication and the acquisition of news. They highlighted the significance of a pioneering Texas law that aims to regulate the influence of dominant social media corporations in shaping public discourse on crucial contemporary matters.
Alito further remarked that the application of our existing precedents, which were established before the advent of the internet, to big social media corporations is not clear-cut.
Liberal justice Elena Kagan dissented as well, though she did not offer any explanation for her dissent.
Tech trade groups, Netchoice and the Computer & Communications Industry Association, contend that implementing these laws may subject tech companies to legal uncertainties when removing violent, hateful, or indecent content. However, according to the companies, keeping such content online could potentially result in user and advertiser boycotts of their services.
Steve DelBianco, president of Netchoice, has said that if the Texas law goes in effect, it could result in a “tidal wave of offensive content and hate speech crashing onto users, creators and advertisers,” saying it could hinder companies’ efforts to remove racial epithets, beheadings and other gruesome content.
Disclosure: Facebook and Google have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
