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Supreme Court to weigh GOP-backed social media ‘censorship’ laws

Texas and Florida both enacted laws that would place new restrictions on the ability of social media companies to decide what user content they wish to publish.
The new Twitter logo rebranded as X and the old Twitter bird logo reflected in smartphone screens.
The new Twitter logo rebranded as X and the old Twitter bird logo reflected in smartphone screens.Joel Saget / AFP - Getty Images

WASHINGTON — The Supreme Court on Friday waded into the divisive issue of online censorship by agreeing to decide the constitutionality of laws in Florida and Texas that seek to prevent social media companies from banning users for contentious rhetoric.

The laws, backed by Republicans, have been characterized by their supporters as hitting back at alleged censorship of conservative speech by liberal-leaning social media companies, although the Supreme Court’s ruling could have broader impacts.

The court's ruling, likely to come next year, will land at a time when the influence of social media companies on society is being hotly debated, with Republicans often critical of moderation decisions they they claim stifle conservative voices while Democrats complain that not enough is done to prevent the spread of hateful rhetoric.

The two cases were among 12 the Supreme Court agreed to hear in its coming nine-month term, which starts on Monday.

Traditionally, social media platforms, as private entities, have broad leeway to make editorial decisions on what user content to allow on their websites or apps, and most apps require people to agree to detailed rules and extensive terms of service in order to continue using them.

Tech companies like Facebook, Twitter and YouTube, represented by trade groups NetChoice and the Computer and Communications Industry Association, known as CCIA, say that both laws infringe upon the free speech rights of companies under the Constitution’s First Amendment by restricting their ability to choose what content they wish to publish on their platforms.

The states argue that they have the authority to regulate social media companies to ensure that users receive equal access to the platforms.

Conservative anger that led to the laws being enacted in 2021 was fueled by the decisions of Twitter, Facebook and others to ban former President Donald Trump after his effort to overturn the 2020 presidential election results ended in his supporters storming the U.S. Capitol on Jan. 6, 2021.

The laws were enacted before Twitter was taken over last year by billionaire Elon Musk, who has allied himself with conservative critics of the platform and allowed various banned users, including Trump, to return.

Trump, now running again for president, filed a brief urging the court to hear the Florida case, arguing the law should be upheld.

The Biden administration also asked the Supreme Court to intervene, but for very different reasons, saying that the restrictions in both laws on content moderation and requirements that platforms give individualized explanations for their decisions violate the First Amendment.

The Florida law among other things prevents companies from banning public figures running for political office and restricts so-called “shadow banning,” whereby certain user content is made difficult to find by other users.

The Texas law prevents platforms from banning users based on the views they express. Both laws require the companies to disclose their moderation policies.

In court papers, Florida Attorney General Ashley Moody wrote that historically states have had the power to regulate companies that transmit other people’s speech, a reference to telecommunications regulations. Florida’s law is aimed at “preventing social media platforms from abusing their power over the public square,” she wrote.

The trade groups responded in court papers that companies, in an effort to combat spam, trolling and overheated rhetoric, have “long exercised editorial discretion in creating and enforcing politics directed at speech that is offensive, objectionable or otherwise contrary to the norms they seek to curate for their particular online communities.”

Referring to the Florida law, the trade groups say it “endeavors to punish select private companies for exercising editorial discretion in ways the state disfavors.” The Florida law exempts companies that operate theme parks in the state, a provision that affects Disney and NBCUniversal, the owner of NBC News.

The Supreme Court in May 2022 blocked the Texas law, preventing it from going into effect. Then, four of the nine justices said the court should not have intervened at that stage.

The Florida measure was blocked by the Atlanta-based 11th U.S. Circuit Court of Appeals, prompting the state to appeal to the Supreme Court.

The 11th Circuit's ruling was in contrast to the New Orleans-based 5th U.S. Circuit Court of Appeals, which declined to block the Texas law.

It is unclear if there are enough votes on the Supreme Court, which has a 6-3 conservative majority, to uphold the two laws. Conservative Justice Clarence Thomas has been most outspoken in criticizing how social media companies are protected under existing law, while fellow conservative Justice Samuel Alito wrote a dissenting opinion when the court blocked the Texas law noting the novel legal issues raised.

“It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies,” he wrote. His opinion was joined by Thomas and conservative Justice Neil Gorsuch. Liberal Justice Elena Kagan also voted against blocking the law but did not explain her reasons.

Earlier this year, the court sidestepped the major legal question of the scope of immunity internet companies enjoy for content posted by their users under Section 230 of the Communications Decency Act.

The court ended up not deciding the issue, which arose in a case involving Google, because it resolved the case on other grounds.

The other cases the justices agreed to hear Friday cover a range of legal issues, from property rights to bankruptcy law. In one of the cases, the court will consider litigation over how the FBI administrates the national "no-fly list" that bars certain people from flying over, into, or from the United States because of security concerns.