Does the First Amendment apply to social media moderation? The U.S. Supreme Court will decide.

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For nearly four hours on Monday, the U.S. Supreme Court heard arguments in a pair of cases that challenge how far states can go to limit the content social media companies allow on their platforms.

The lawsuits, which were brought by two tech trade groups, challenge whether Texas and Florida can legally prohibit large social media companies from banning certain political posts or users. Both states passed laws in 2021 to stop what Republican state leaders considered “censorship” of conservative viewpoints.

The laws came on the heels of the Jan. 6, 2021 attack on the U.S. Capitol, which led Facebook, Twitter and other social media platforms to suspend former president Donald Trump’s social media accounts because his posts were thought to glorify violence.

The Florida and Texas laws are similar in that they both limit social media companies’ content moderation. But they differ in their details. Texas’ law is broader in that it prohibits companies from removing content based on their authors’ viewpoint, whereas Florida’s law bars companies from removing politicians from their site.

NetChoice and the Computer & Communications Industry Association brought lawsuits in which they argued both laws are unconstitutional because they conflict with the First Amendment, which protects against government infringement of speech.

On Monday, attorneys for NetChoice argued that social media companies should be treated the same as newspapers or bookstores, which are free to choose what to publish or which books to sell without government interference. Paul Clemente, arguing on behalf of NetChoice, said social media companies are not “censoring” certain users but are exercising “editorial discretion.”

Texas Solicitor General Aaron Nielson meanwhile argued that internet platforms should be considered “common carriers” like telecommunications companies or mail services that are required to transmit everyone’s messages.

The Supreme Court Justices appeared conflicted. Most justices noted that the laws posed free speech challenges, but they seemed hesitant to strike down the laws entirely. They questioned both sides on whether the laws may be legal in some respects but unconstitutional in others. For example, some large social media companies, including Facebook, offer direct messaging. The justices indicated that the laws’ applications on direct messaging would not implicate free speech and therefore should not be struck down.

At one point, Justice Sonia Sotomayor said her inclination would be to remand the case back to the lower courts for more discussion, a view that several justices appeared to favor. The Court is expected to issue a decision by the end of June.

The Supreme Court’s review of the laws represents the first major examination of if and how free-speech laws apply to social media companies. Legal experts say that the high court’s decision could have significant implications for statehouses across the country as they begin writing laws to address misinformation online.

“The stakes for free speech online are potentially enormous,” said Scott Wilkens, senior counsel at the Knight First Amendment Institute at Columbia University. “The court here is being presented with diametrically opposed interpretations of the law, and what the court does could, on the one hand, allow the government free rein to regulate social media platforms, or, on the other, prohibit the government from regulating them at all.”

The free speech provisions included in the First Amendment do not mean that private companies are forced to allow certain speech. Instead, the Constitution states that the government cannot compel or prohibit speech from private actors.

Willkens said he believes the Court should take a middle ground and rule that while the platforms have a right to make editorial judgements, states can still regulate the platforms in ways that would promote democracy. For example, he said the platforms should be required to disclose how they curate their content.

That is a view that Solicitor General Elizabeth Prelogar, representing the Biden administration, took on Monday. She sided with tech industry groups and argued that the laws should be struck down. But she emphasized that the government could still regulate social media companies by other legal means, such as through antitrust, consumer protection or privacy laws.

“I want to be very clear that we are not suggesting that governments are powerless,” Prelogar said. “One natural place to go is disclosure, to ensure that if you think a platform has Orwellian policies, you at least make sure users have information about how they are acting, what their policies are.”

Texas’ social media law, referred to as House Bill 20, would mandate that tech companies publicly disclose how they curate their content. The Supreme Court is not considering the legality of that portion of the law. They are focusing on other provisions of law, including its prohibition on social media companies with more than 50 million active monthly users from banning users based on their viewpoints. The Court will also consider the law’s requirement that platforms produce regular reports of removed content and create a complaint system to allow users to raise flags about removed content.

The laws also have political implications. President Joe Biden’s administration has backed the tech companies’ legal challenge while former President Donald Trump filed an amicus brief in support of Florida and Texas.

Tech companies argue that giving the government any control over their content opens the door to a flood of misinformation that would be harmful to users.

“What could end up happening is that websites are flooded with lawful but awful content,” Carl Szabo, vice president and general counsel at NetChoice, said prior to oral arguments in an interview with The Texas Tribune. “That renders our ability to access the information we want and not see the information we don’t want, impossible.”

Szabo said social media companies remove billions of pieces of content from their platforms each month, including sexually explicit material, spam, or other content that violates their terms of services.

Gov. Greg Abbott, who made the bill a priority during a special legislative session in 2021, said after the law was passed that it was intended to protect individuals’ freedom of speech.

“Allowing biased social media companies to cancel conservative speech erodes America's free speech foundations,” Andrew Mahaleris, a spokesperson for Abbott, said in a statement to The Texas Tribune. “Social media websites are a modern-day public square. They are a place for healthy debate where information should be able to flow freely — but there is a dangerous movement by social media companies to silence conservative viewpoints and ideas.”

Disclosure: Facebook has been a financial supporter 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.

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