The Supreme Court is scheduled next month to hear a pair of cases concerning the constitutionality of laws in Florida and Texas prohibiting social media platforms from censoring users’ content.
In February, the Justices will hear oral arguments for both Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton.
NetChoice and the Computer & Communications Industry Association– parties in both of these cases, referred to jointly as NetChoice — are trade associations that represent social media companies like Facebook, Twitter, Google (which owns YouTube), and TikTok.
Following a district court decision in favor of NetChoice — and a subsequent affirmation from the U.S. Court of Appeals for the Eleventh Circuit — Florida Attorney General Ashley Moody petitioned the Supreme Court to review the case, a request it granted on September 29.
In Texas, the U.S. Court of Appeals for the Fifth Circuit reversed a lower court’s ruling in favor of NetChoice, instead siding with Texas Attorney General Ken Paxton. In response, NetChoice asked the Supreme Court to review the case and was also granted cert on September 29.
Both in Texas and Florida, lawmakers approved legislation several years ago that restricted social media companies’ discretion in regulating the content that users post on their platforms, as well as required that the companies provide users with detailed content moderation policies.
The passage of these bills kicked off the set of legal battles that have now wound their way up to the Supreme Court.
The Justices are now tasked with considering two questions with respect to these laws: whether their “content-moderation restrictions comply with the First Amendment” and whether their “individualized-explanation requirements comply with the First Amendment.”
While the Attorneys General in these cases essentially argue that their states’ laws serve to protect the free speech of social media users, NetChoice suggests that they instead violate the First Amendment rights of social media platforms.
“When social-media companies abuse their market dominance to silence speech, they distort the marketplace of ideas,” Attorney General Moody states in her petition to the Court. “With no market-based solution forthcoming, government has sought to defend the free exchange of ideas.”
“As this Court has recognized, social-media platforms have become the gatekeepers of a digital ‘modern public square,'” Moody wrote. “Today, ‘users of social media are subject to a regime of private censorship that was only recently unimaginable.'”
“In this censorship regime, ‘social media giants’ using their enormous power to suppress particular views is reality,'” Moody contends.
On the other hand, NetChoice suggests in its petition for review that such a law “infringes the core First Amendment rights of [social media companies] by denying them editorial control over their own websites, while forcing them to publish speech they do not wish to disseminate.”
“[This law] compels speech dissemination by prohibiting websites from engaging in editorial choices based on the ‘viewpoint’ of the expression or user,” NetChoice argues. “[It] imposes onerous operational and disclosure requirements similarly aimed at chilling websites’ editorial discretion.”
In other words, the states in these cases view their laws as protecting freedom of speech for social media users by helping to safeguard their ability to post freely online, while NetChoice views these laws as depriving the platforms of their right to free speech by restricting their editorial freedom with regard to what is shared on their sites.
These petitions for review were submitted to the Court in mid-to-late 2022, more than a year after the Texas and Florida state legislatures first approved the laws at the heart of these cases.
Maine Attorney General Aaron Frey — alongside twenty other attorneys general — signed onto an amicus brief for these cases that is in support of neither party.
These states argue that the Court ought to “carefully consider the unique regulatory challenge posed by social media platforms and adopt a nuanced approach that acknowledges that there is no ‘one size fits all’ First Amendment analysis of state regulation of social media platforms.”
“The Court should scrupulously avoid an interpretation of the First Amendment that effectively immunizes platforms from meaningful regulation,” the amicus brief argues.
According to the brief of the attorneys general, “many regulations have little, if any, effect on speech.” Thereby, they argue, “where a provision applies only to non-
expressive conduct or otherwise has little or no effect on speech, the First Amendment does not limit States’ authority to regulate.”
“Social media platforms may not ‘claim special protection from governmental
regulations’ simply because they are in the business of hosting users’ speech,” the attorneys general state.
“The Court’s decision should recognize States’ important interests in regulating social media platforms to prevent harm to their citizens and should avoid interpreting the First Amendment to immunize social media platforms from regulation,” the brief concludes.
This legal battle comes shortly after the Biden Administration was taken to court over allegedly coercing social media companies into restricting users’ speech on the platforms in accordance with the government’s wishes thereby violating users’ First Amendment rights.
In that case, the lower courts found that members of federal agencies and the Biden Administration potentially violated the First Amendment by inappropriately communicating and collaborating with social media companies to suppress posts concerning “the COVID–19 lab leak theory, pandemic lockdowns, vaccine side effects, election fraud, and the Hunter Biden laptop story.”
As a result of these allegations, an injunction was issued by a Louisiana judge barring the named Defendants in the case from engaging in a wide swath of activities potentially related to their alleged unconstitutional behavior, but these prohibitions were later paired down by the Fifth Circuit following an appeal from the Biden Administration.
Most recently, the injunction was stayed in its entirety by a majority of Justices on the Supreme Court pending its expected review of the case later this year. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented from the decision.
Oral arguments for both Moody v. NetChoice and NetChoice v. Paxton are scheduled for February 26, 2024.