The Supreme Court appeared reluctant Monday to issue a ruling that would shake up how social media companies operate during oral arguments in two cases challenging how state laws in Texas and Florida could regulate internet giants such as Meta and Google.
The justices spent nearly four hours grappling with free speech issues presented by the laws, how social media companies operate and how that interacts with a federal law that provides internet companies immunity from lawsuits for content posted by users in most cases.
Decisions in the cases could ripple far beyond the two state laws at issue, impacting the tools Congress could have to address harms caused by social media, including harm to children.
The lawyers who argued Monday laid out a range of options for the justices, including a route that would keep the status quo and send the case back to lower courts to explore a wider range of legal questions. The justices are expected to decide the cases before the conclusion of the court’s term at the end of June.
The arguments on both sides “present a very hard question for us,” Justice Neil M. Gorsuch said at one point, as the justices debated how to handle the differing state laws and the complicated procedural nature of the two cases.
Lawyers for Texas and Florida defended their laws, which were intended to combat perceived “censorship” of conservative voices online, arguing that social media giants such as Facebook, YouTube and X, the site formerly known as Twitter, control so much public discourse they should be regarded more like telephone companies or telegraph operators.
The state laws included restrictions against removing accounts based on viewpoints, requirements that those sites have detailed explanations for their decisions and an appeals process when people are blocked. The laws have some differences, which came up during oral arguments, such as how the Florida law includes up to $100,000 in damages for violations but the Texas law does not.
Texas Solicitor General Aaron L. Nielson told the justices that social media companies control so much debate that “there will be no public square to speak of” if the state didn’t step in.
Chief Justice John G. Roberts Jr. and others on the court pushed back on that idea, pointing out that social media companies are private entities not covered by the First Amendment.
“I wonder, since we’re talking about the First Amendment, whether our first concern should be with the state regulating what, you know, we have called the modern public square?” Roberts asked.
Roberts also noted that the states had effectively asked the court to take “a very big step when it comes to government regulation” of the internet.
Henry C. Whitaker, Florida solicitor general, argued the states had a First Amendment interest in promoting the “free exchange of ideas” online. Whitaker argued telephone companies do not get to discriminate against their customers based on what they say, and neither should social media companies.
“I don’t think Verizon would gain a greater right to censor because it was a conference call,” Whitaker said.
‘Laser beam’
Industry groups NetChoice LLC and the Computer & Communications Industry Association, which challenged the laws, argued that they violate the free speech rights of their clients by requiring them to host speech they disagree with.
Paul D. Clement, attorney for the industry groups, said state officials crafted the laws to be “targeted like a laser beam at the companies whose editorial judgments they did not like” because of perceived bias against conservatives.
Clement argued that the laws would require the sites to either host all sorts of objectionable content, including advocating for eating disorders, antisemitism and the like, or severely limit what users are allowed to post.
Clement called the laws a “formula for making those websites unpopular to both users and advertisers.”
Justice Samuel A. Alito Jr. pressed Clement repeatedly to square his position in the case with the protections Congress provided to social media companies in Section 230 of the Communications Decency Act, which provides internet companies immunity from lawsuits for content posted by users in most cases.
Alito said that law allows social media companies to place a distance between themselves and what’s posted on their sites, which is the opposite of their arguments against the Texas and Florida laws.
“Either it is your message, or it is not your message,” Alito said to Clement.
Clement responded that “the whole point” of Section 230 was to recognize that websites and social media companies may have a free speech interest in what gets posted by users, and to let them off the hook for it.
Justice Amy Coney Barrett at one point noted she was “a little nervous” with an assertion by NetChoice that states could not require that a social media website treat direct messages or email equally.
But she also noted that the case presents “a bunch of land mines,” particularly surrounding Section 230.
The Biden administration supported NetChoice, arguing the two state laws violated the free speech rights of the social media companies. Solicitor General Elizabeth B. Prelogar argued for the justices to decide the issues in the case in a way that would allow the litigation to proceed at lower courts.
“These platforms are private parties and are not bound by the First Amendment as an initial matter,” Prelogar said.
Allowing the states to implement the laws could have a “huge chilling effect” on social media companies, she said.
Lurking in the background of the cases are broader questions about the free speech rights of major social media platforms, which could ripple out to Congress’ and the states’ ability to regulate social media.
The justices have previously shied away from deciding that issue, including in two cases last year that dealt with Google and Twitter’s civil liability for posts that allegedly helped spur terror attacks.
Monday’s cases came to the court after two contradictory rulings by appeals courts upheld the Texas law and mostly blocked the Florida one.
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