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SUpreme Court GRapples with Texas and FLorida SOcial Media Laws

On Monday, the Supreme Court heard oral arguments in a landmark case about laws that prevent social media companies from censoring user-generated content that they find objectionable. A pair of laws in Texas and Florida, which are being challenged by social media companies, regulate whether firms can remove posts from their sites, and come in response to claims that conservative viewpoints have been censored on outlets like Facebook and X (formerly Twitter). These laws sprung up in part as a response to the events of January 6, 2021, and the perceived unjust censorship of conservatives in relation to those events.

The oral arguments for the case (Moody vs. NetChoice LLC) lasted for nearly four hours and resulted in a divided set of opinions among the justices. Some justices suggested that the laws are too strict and may infringe upon the companies' First Amendment rights, while others expressed concerns that unregulated social media moderation could suppress important information and fair public debate.

 

Those skeptical of the laws maintain that the state does not have the right to interfere with social media platform's editorial decisions. Chief Justice John Roberts asked, "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?" and Matt Schruers, president of the Computer & Communications Industry Association, argued, "There is nothing more Orwellian than the government trying to dictate what viewpoints are distributed in the name of free expression."

The other side of the litigation has responded by arguing that the big tech companies are practicing exactly that kind of Orwellian censorship--dictating "what viewpoints are distributed"--with regard to their users. From this point of view, the people whose free speech is under threat are not the CEO's of tech companies, but the users of the social media sites. Florida Solicitor General Henry Whitaker stated that social media platforms are “in the business of transmitting their users’ speech” and they “do not have a First Amendment right to apply their censorship policies in an inconsistent manner and to censor and deplatform certain users.”

Much of the controversy seems to circle around how to properly classify social media, which is a relatively new medium of communication and public discourse. Should it be treated like a newspaper or magazine, thus receiving the same First Amendment protections that the press does, or should it be considered more like an email service or phone provider, which wouldn't have the right to censor its users, especially based on their political viewpoints? The tech companies are building their case partly on the 1974 Supreme Court case, Miami Herald v. Tornillo, in which Florida demanded that the newspaper carry certain op-eds it didn't want to publish. Florida lost that case. But is a social media site the same as a newspaper? This the court must decide.

The most likely outcome, it appears, is that the laws will remain blocked and the case returned to the lower courts for the time being.

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