Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.
The Supreme Court on Friday said it would wade into the future of free speech online and decide whether laws passed in Texas and Florida can restrict social media companies from removing certain political posts or accounts.
The justices’ decision to take the landmark social media cases came in an order that also added 10 other cases to the calendar for the Supreme Court term that begins on Monday. Earlier, the high court had said it would tackle controversial issues involving gun regulations, voting rights and the power of federal agencies. Those cases will be heard as the justices are under intense pressure from Democratic lawmakers to address ethics issues facing some of their colleagues, including potential conflicts in some of the cases.
Tech industry groups, whose members include Facebook and Google’s YouTube, asked the court to block Texas and Florida laws passed in 2021 that regulate companies’ content-moderation policies. The companies say the measures are unconstitutional and conflict with the First Amendment by stripping private companies of the right to choose what to publish on their platforms.
The court’s review of those laws will be the most high-profile examination to date of allegations that Silicon Valley companies are illegally censoring conservative viewpoints. Those accusations reached a fever pitch when Facebook, Twitter and other companies suspended former Donald Trump’s accounts in the wake of the Jan. 6, 2021 attack on the U.S. Capitol.
The justices’ ruling could have significant implications for the future of democracy and elections, as Americans increasingly rely on social media to read and discuss political news. It could also have wide-ranging implications for policymakers in Congress and statehouses around the country as they attempt to craft new laws governing social media and misinformation.
As Congress has remained deadlocked on those issues, states are playing a larger role in governing digital privacy, artificial intelligence and social media. Democrats largely have argued that the companies are not doing enough to root out hate speech and other harmful content online, and they have passed laws in California and New York to force greater transparency of the companies’ rules and decisions.
Appeals court judges, all nominated by Republican presidents, have issued conflicting rulings on state authority to restrict a business’s ability to select, edit and arrange content that appears on its social media platform.
The Biden administration urged the Supreme Court to take the social-media case and to prevent the Texas and Florida laws from taking effect.
“The act of culling and curating the content that users see is inherently expressive, even if the speech that is collected is almost wholly provided by users,” Solicitor General Elizabeth B. Prelogar told the justices.
“And especially because the covered platforms’ only products are displays of expressive content, a government requirement that they display different content—for example, by including content they wish to exclude or organizing content in a different way—plainly implicates the First Amendment.”
The First Amendment generally protects against government infringement on speech. Courts have also held that private companies, including newspapers and broadcasters, have the right to control the speech they publish and disseminate. That includes the right of editors not to publish something they don’t want to publish.
The Texas law, signed by Republican Gov. Greg Abbott, allows state residents and the attorney general to sue large social media companies if they believe they were unfairly banned or censored from a platform. A similar Florida law would penalize social media companies for blocking a politician’s posts.
Last spring, in a 5-4 vote, the Supreme Court prevented the Texas law from taking effect while the litigation continues.
“Social media platforms have transformed the way people communicate with each other and obtain news,” Justice Samuel A. Alito Jr. wrote in a dissent, joined by fellow conservatives, Justices Clarence Thomas and Neil M. Gorsuch. “At issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”
Alito added: “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”
Liberal justice Elena Kagan also dissented, but did not provide an explanation.
Tech trade groups, Netchoice and the Computer & Communications Industry Association, argue that if the laws take effect, they could have made it legally risky for tech companies to remove violent, hateful or indecent content. But leaving the content online could lead to user and advertiser boycotts of the services, the companies say.
Steve DelBianco, president of Netchoice, has said that if the Texas law goes in effect, it could result in a “tidal wave of offensive content and hate speech crashing onto users, creators and advertisers,” saying it could hinder companies’ efforts to remove racial epithets, beheadings and other gruesome content.
Disclosure: Facebook and Google have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.