The U.S. Supreme Court on Monday heard oral arguments in a pair of cases challenging the constitutionality of anti-censorship laws in Florida and Texas that seek to prevent large social media sites from deplatforming politicians or political speech.
Lawyers for the states asserted a right to regulate social media companies. The tech industry argued the laws interfere with their First Amendment right to assert editorial control.
“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,” Florida Solicitor General Henry Whitaker told the justices.
Attorney Paul Clement, a former U.S. solicitor general arguing on behalf of the tech industry, countered that the state laws infringe upon previous court findings protecting against the “forced dissemination of third-party speech.”
“Given the vast amount of material on the internet in general and on these websites in particular, exercising editorial discretion is absolutely necessary to make the websites useful for users and advertisers,” Clement said in arguing against the Florida law.
U.S. Solicitor General Elizabeth Prelogar also participated in the oral arguments and sided with the companies.
“The First Amendment protects entities that curate, arrange and present other people’s words and images and expressive compilations,” Prelogar said. “As this court’s cases have held, those principles cover newspaper editors, parade sponsors and web designers. It also covers social media platforms.”
Lawyers for both sides faced tough questions from the justices who appeared to wrestle with whether states have the right to prevent social media companies from moderating content and the extent to which the platforms have carte blanche to censor content. Another issue raised was whether email and direct messaging could be implicated.
The justices also repeatedly returned to the question of how a ruling on the constitutionality of the state laws might implicate Section 230 of the federal Communications Decency Act, which generally gives online purveyors immunity for the content that third parties post to their platforms.
The back-and-forth between justices and attorneys pushed the oral arguments well over the one hour that had been allotted for each case.
The cases represent a major test of the constitutionality of state-level efforts to regulate social media companies and treat them as common carriers that cannot discriminate, rather than as private companies that can dictate what content is and is not allowed on their platforms.
The Florida and Texas laws were passed in 2021 following the deplatforming of former President Donald Trump from social media sites after the Jan. 6 attack on the U.S. Capitol. Trump submitted a brief in the Florida case.
The Florida law aimed to block social media sites from deplatforming candidates for public office while allowing individuals to bring lawsuits against the companies for alleged unfair treatment.
The Texas law, signed four months later, sought to ban social media companies from removing users for expressing their political opinions.
The cases have drawn intense interest from digital rights and privacy groups including the ACLU, which has urged the Supreme Court to block the Florida and Texas laws. NetChoice said 44 amicus briefs supporting its position were filed with the court.
The 2021 laws were borne out of a conservative backlash against social media companies for clamping down on political content that was deemed to violate their terms of use. After the laws were passed and subsequently challenged in court, momentum for similar legislation in other red states waned.
Since then, state lawmakers of both parties have shifted their focus to how the platforms interact with kids. Those efforts have also been challenged in court.
Arkansas, Louisiana, Ohio and Utah passed laws last year requiring parents to give permission for kids to have a social media account. Courts have since blocked the Arkansas and Ohio laws from taking effect. Utah lawmakers are now rewriting their statute to try to make it more constitutionally durable.
Florida lawmakers last week sent Gov. Ron DeSantis (R) a bill that would ban kids under 16 from having an account on certain social media sites. The tech industry has called the proposed law unconstitutional and is urging a veto.
NetChoice, a right-of-center tech trade group, has spearheaded the litigation against the states. In the cases against Florida and Texas, NetChoice partnered with the Computer & Communications Industry Association, another trade group.
The Supreme Court agreed in September to take the cases after the Fifth and Eleventh Circuit Courts of Appeal came to different conclusions on the state laws. The Fifth Circuit reversed a lower court’s injunction blocking the Texas law from taking effect, while the Eleventh Circuit upheld a Florida injunction.
The Supreme Court is likely to issue a decision by June.