The Supreme Court is considering the fate of two state laws that limit how social media companies can moderate content on their platforms.
In their oral arguments Monday, the justices tackled a host of thorny issues that could reshape the Internet, from social networks like Facebook and TikTok to apps like Yelp and Etsy.
In October, the Supreme Court decided to know the two parallel cases, one in Florida (Moody v. NetChoice, LLC) and one in Texas (NetChoice, LLC v. Paxton). In both cases, signed into law by Republican governors, a new state law ordered social media companies to stop removing certain types of content.
Florida Senate Bill 7072 prevents social media companies from banning political candidates or placing restrictions on their content. In Texas, House Bill 20 told social media companies they could no longer remove or demonetize content based on the “point of view represented in the user's expression.” In FloridaA federal appeals court ruled mostly in favor of the tech companies, but in Texas the appeals court sided with the state.
The two laws were crafted by Republican lawmakers to punish social media companies for their perceived anti-conservative bias. Those accusations have not been confirmed by investigations, but conservative social media users are disproportionately exposed to political misinformationwhich could explain perceptions of an ideological discrepancy in technology content moderation decisions.
The laws of Florida and Texas are now tangled in a complex web of dusty legal precedents, based largely on rulings created long before words like “tweet” and “livestream” were part of everyday speech. Because most of the laws governing the modern Internet are so outdated, both tech companies and their critics are eager for clarity, although as The Supreme Court spoke out last year. with a different couple of social media cases, they might not get it.
On Monday, judges on both sides of the political spectrum were skeptical about the pair of state laws. In her oral arguments, Justice Sonia Sotomayor called the cases “bizarre” and warned that their broad nature could have unforeseen impacts.
“It appears that your law covers almost all social media platforms on the Internet, and we have amici who are not traditional social media platforms, such as smartphones and others, who have filed amici briefs, telling them that the readings of this law could cover them . ”Sotomayor said, referencing Florida law.
“This is so, so broad, it covers almost everything. But the only thing I know about the Internet is that its variety is infinite.” Sotomayor pointed to online marketplace Etsy as a less obvious example of a website that could be negatively affected by state laws designed to dictate what social media companies can do.
Addressing Florida Attorney General Henry Whitaker, Justice Brett Kavanaugh mentioned the First Amendment, but not in a way that was sympathetic to the state's argument.
“You said the design of the First Amendment is to prevent 'suppression of speech,'” Kavanaugh said. “And you left out what I understand to be three key words in the First Amendment or to describe the First Amendment, “by the government.”
Even Justice Neil Gorsuch, who seemed more sympathetic to arguments critical of social media, pointed to Section 230, a long-standing law that protects content moderation decisions by Internet companies, noting that it is probably “preempted.” to state limits on social media moderation.
Not all judges seemed to side with the tech industry. Justices Clarence Thomas and Samuel Alito appeared to find the states' arguments more compelling than those of their peers, with Alito at one point asking whether the idea of content moderation was “anything more than a euphemism for censorship.”
Monday's hearing provided some clarity on what the majority of the justices' current position appears to be, but anything can happen, even nothing. A handful of justices, including Justices Sotomayor, Gorsuch, Barrett and Thomas, expressed uncertainty about how the cases were presented to begin with.
“It's called a face challenge, because in view of the law, an opponent claims that what the legislature has done is unconstitutional,” Paul Barrett, an associate professor of law at New York University and deputy director of the Center, told TechCrunch. of Business and Human Rights at New York Stern University. “It is a case where a party, in this case industry groups, go to court, even before the law comes into force. And they tell the trial judge: 'this law is unconstitutional, no matter how it is applied.'
“They asked the judge at the time for an injunction saying the law should not go into effect. In doing that, there is no usual supply of facts, figures, experience and so on, no testimony to allow an appeals court to see how the law works in practice.”
The Supreme Court could issue a decisive ruling any time between now and when its term ends in June. Or it could refuse to rule on the issues at hand and choose to send cases back to lower courts for a full trial, a process that could take years. “Supreme Court cases can fail this way, to the frustration in most cases of other parties,” Barrett said.
Either way, the nation's highest court will eventually have to confront the Internet age head-on. Many of the relevant legal precedents deal with cable television, newspapers, or utility companies, not Internet companies with many millions or even billions of users.
“It is clear that the Supreme Court needs to update its First Amendment jurisprudence to take into account this vast technological change,” Barrett said. “…The Supreme Court often lags behind society in addressing these kinds of things, and now is the time to address it.”