In nearly four hours of debate, several justices questioned aspects of laws passed by Republican-dominated legislatures and signed by Republican governors in Florida and Texas in 2021. But they appeared wary of a sweeping ruling, with Judge Amy Coney Barrett warning of “landmines” she and her colleagues must avoid in resolving the two cases.
Although the details are different, both laws were aimed at countering conservative complaints that social media companies were liberal-leaning and censoring users based on their views, particularly those of the political right.
There were disagreements in the court over how to think about the platforms – comparable to newspapers, which have broad free speech protections, or to telephone companies, known as “common carriers,” which are subject to broader regulation.
Chief Justice John Roberts suggested he was in the former camp, saying at the start of the session: “And I wonder whether our first concern when we talk about the First Amendment should be that the state regulates, what we call the modern public square?”
Justices Samuel Alito and Clarence Thomas appeared most willing to accept the states' lawyers' arguments. Thomas expressed the idea that the companies are seeking constitutional protection for “censorship of other speech.”
Alito complained about the term “content moderation” that the sites use to keep material off their platforms.
“Is this more than a euphemism for censorship?” he asked, later reflecting that the term seemed Orwellian to him.
But Justice Brett Kavanaugh, who appeared to be more sympathetic to the companies, declined to call the actions of private companies censorship, a term he said should be reserved for government-imposed restrictions.
“When I think Orwellian, I think of the state, not the private sector, not private individuals,” Kavanaugh said.
The exact outline of the rulings in the two cases was not clear after the arguments, although it appeared likely that the court would not allow the laws to take effect. The justices raised questions about how the laws could affect businesses that are not their main target audience, including e-commerce sites like Above And Etsy and email and messaging services.
The cases are among several that the judges have dealt with over the past year in connection with social media platforms. Next month, the court will hear an appeal from Louisiana, Missouri and other parties accusing government officials of pressuring social media companies to silence conservative viewpoints. Two other cases awaiting a decision involve whether officials can block critics from commenting on their social media accounts, an issue that has been raised before a case involving then-President Donald Trump. The court dismissed Trump's case when his term as president ended in January 2021.
The Florida and Texas laws were passed in the months after Facebook and Twitter (now X) decided to ban Trump over his posts related to his supporters' attack on the US Capitol on January 6, 2021.
Trade associations representing the companies filed suit in federal court, claiming the laws violated the platforms' speech rights. A federal appeal overturned the Florida law, while another upheld the Texas law. However, both are on hold pending the Supreme Court's decision.
In a statement as he signed the bill, Florida Gov. Ron DeSantis said the measure was a “protection from Silicon Valley elites.”
When Gov. Greg Abbott signed the Texas law, he said it was necessary to protect free speech in what he called a new public square. Social media platforms “are a place for healthy public debate where information should flow freely – but there is a dangerous movement by social media companies to silence conservative viewpoints and ideas.” This is wrong and we will not allow it in Texas,” Abbott said.
But a lot has changed since then. Elon Musk bought Twitter and not only changed the name, but eliminated teams focused on content moderation, welcomed back many users previously banned for hate speech, and used the site to spread conspiracy theories.
The Biden administration is siding with the challengers. Lawyers for Trump have filed a brief in the Florida case asking the court to uphold state law.
Still, Attorney General Elizabeth Prelogar, the government's top lawyer at the Supreme Court, urged the court to seek a narrow decision blocking the laws. Prelogar said governments remain able to impose regulations to ensure competition, protect data privacy and protect consumers' interests.
Several academics and privacy groups told the court that they view the laws at issue in these cases as unconstitutional, but they want the justices to preserve the government's ability to regulate social media companies to some extent .