The Supreme Court Hears Arguments on Just How Free Online Speech Can Be
The internet could look vastly different depending on how the U.S. Supreme Court rules on the question of whether tech companies’ curation of posts and users can be protected under the First Amendment.
The court heard oral arguments Monday for a pair of lawsuits challenging laws passed in Texas and Florida that barred social media sites from curating political speech. Both laws were inspired by conservative backlash claiming Big Tech platforms censored posts and users with right-wing viewpoints.
The fundamental question at the center of both lawsuits is whether social media platforms such as Facebook and TikTok have the rights to curate content under the free speech protections of the First Amendment.
Those in favor of the laws say they combat censorship and allow the expression of all viewpoints unchallenged online, while opponents claim they impede on First Amendment rights held by the social media companies, and that their ability to curate prevents the spread of hate speech and disinformation.
Among the groups advocating against the state laws is the Knight First Amendment Institute at Columbia University, which filed an amicus brief in the lawsuits.
“These cases are immensely important and will have far-reaching implications for the digital public sphere and for our democracy,” Knight Institute executive director Jameel Jaffer said in a statement. “It’s difficult to think of any other recent First Amendment case in which the stakes were so high.”
NetChoice, a nonprofit trade association that advocates for the First Amendment rights of technology companies, is one of two organizations challenging the state laws. “We’d have to fundamentally change our business model,” NetChoice attorney Paul Clement said during Monday’s arguments regarding the impact a case ruling against tech could have.
The Florida law, called Senate Bill 7072, prohibits social media sites from deplatforming political candidates and holds them liable for antitrust violations. It was in part drafted in response to Facebook and Twitter banning Donald Trump after the Jan. 6 insurrection.
Florida Gov. Ron DeSantis said in a statement when the bill was first passed: “We took action to ensure that ‘We the People’ — real Floridians across the Sunshine State — are guaranteed protection against the Silicon Valley elites.”
The Texas law, known as Texas House Bill 20, prohibits social media platforms from curating, deleting or editing posts made by Texas users based on “viewpoints.” The law was briefly reviewed by the Supreme Court in 2022 before being pushed back down to the lower courts.
“It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies, but Texas argues that its law is permissible under our case law,” Justice Samuel Alito wrote in a dissent of the 2022 ruling.
The lack of case law precedent highlights one of the significant challenges faced by the Supreme Court in their ruling on the matter.
One major regulation that is closely related to Monday’s cases but not directly involved is Section 230, a landmark part of the 1996 Communications Decency Act, which holds that online platforms cannot be held legally liable for the content that is published on those platforms. Section 230’s broad scope of protection has defined much of how tech companies curate social media platforms. The Supreme Court decided to not limit Section 230’s scope in a ruling last year.
Monday’s oral arguments involved several other First Amendment rulings beyond Section 230. Among the most prominent case law discussed during Monday’s arguments was Miami Herald v. Tornillo, a 1974 decision which overruled a Florida law requiring newspapers to allow the same space for opposing political candidates to respond to endorsements or editorials. Another precedent is a 1995 ruling, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, which held that a private parade organizer could not be forced to include a group with a message it disliked, even if required by law. The justices also invoked last year’s 303 Creative LLC v. Elenis, which held that a web designer did not have to create websites for gay couples despite Colorado’s anti-discrimination laws.
Though the arguments are taking place this week, the Supreme Court’s final decision on Big Tech censorship could be withheld from publication until the end of its term in June.
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