by The Supreme Court on Monday seemed skeptical of Florida and Texas laws that prohibit major social media companies from making editorial judgments about what messages to allow.
The laws were enacted in an effort to protect conservative voices on the sites, but a court decision, expected in June, will almost certainly be their most important statement on the reach of the First Amendment in the Internet age, with broad political debates and economic implications.
A decision that tech platforms have no editorial discretion to decide which posts to allow would expose users to a wider variety of viewpoints, but would almost certainly amplify the nastier aspects of the digital age, including hate speech and disinformation.
Although a ruling in favor of large platforms like Facebook and YouTube seemed likely, the court also seemed willing to send the cases back to lower courts to answer questions about how the laws apply to sites that do not appear to moderate their users’ speech on the same way, like Gmail, Venmo, Uber and Etsy.
The justices disagreed on whether the laws, which have been blocked for now, should take effect in the meantime. But a majority seemed inclined to keep them on hold while the litigation progresses. Several judges said states violated the First Amendment by telling a handful of major platforms they couldn’t moderate their users’ posts, drawing distinctions between government censorship prohibited by the First Amendment and the actions of private companies to determine what speech to include. in their sites.
“I have a problem with laws that are so broad that they repress expression,” said Justice Sonia Sotomayor.
Justice Brett M. Kavanaugh read a sentence from a 1976 campaign finance decision that has long been a touchstone for him. “The concept that the government can restrict the speech of some elements of our society to enhance the relative voice of others is wholly foreign to the First Amendment,” he said, indicating that he rejected the states’ argument that they can regulate equity . of public debate in private spheres.
“I wonder,” said Chief Justice John G. Roberts Jr., “since we are 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.
Henry C. Whitaker, Florida’s attorney general, responded that “the state has an interest, a First Amendment interest, in promoting and ensuring the free dissemination of ideas.”
Justice Elena Kagan said major platforms had good reason to reject posts that incited insurrection, endangered public health and spread hate speech. “Why isn’t it a First Amendment ruling?” she asked.
The court’s three most conservative members — Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — seemed sympathetic to state laws. All three said that phrases like “content moderation” were euphemisms for censorship.
As the discussion turned to less prominent venues, judges across the ideological spectrum became concerned about the lack of information about them in the court record. Several indicated they might look at the First Amendment issue differently depending on the platform.
Justice Kagan asked whether states could tell services like Venmo, Dropbox and Uber that they cannot discriminate based on the views of their users.
“Wouldn’t that be nice?” he asked Paul D. Clement, a lawyer for the challengers.
Clement said no, and responded that all of those services are “still in the expressive business,” meaning that speech is part of their core activities in ways that are not the case at, say, a gas station or an ice cream stand.
Other judges asked about email and messaging services.
“Does Gmail have a First Amendment right to delete, say, the Gmail accounts of Tucker Carlson or Rachel Maddow if they disagree with their views?” Judge Alito asked Mr. Clement.
Clement responded that the service “could do that,” adding that such questions had not been the focus of the litigation.
He added that prohibiting platforms from making distinctions based on viewpoint would destroy their businesses.
“If you have to be viewpoint neutral,” he said, “that means that if you have materials related to suicide prevention, you also have to have materials that advocate for suicide promotion. Or, if you have materials on your site that are pro-Semitic, then you must allow materials on your site that are anti-Semitic. And that is a formula for making these websites very unpopular with both users and advertisers.”
Supporters of the laws said they were an attempt to combat what they called Silicon Valley censorship, through which major social media companies had removed posts expressing conservative views. The laws were prompted in part by some platforms’ decisions to ban President Donald J. Trump after the Jan. 6, 2021, attack on the Capitol.
The laws of Florida and Texas differ in their details. Florida prevents platforms from permanently banning candidates for political office in the state, while Texas prohibits platforms from removing any content based on a user’s point of view.
“To generalize a bit,” Judge Andrew S. Oldham wrote in a decision upholding the Texas law, Florida law “prohibits all censorship of some speakers,” while the Texas one “prohibits some censorship of all speakers” when based on the opinions they express.
The two trade associations challenging the state laws — NetChoice and the Computer & Communications Industry Association — said the actions Judge Oldham called censorship were editorial choices protected by the First Amendment, which generally prohibits government restrictions on speech based on the content and point of view.
The groups said social media companies were entitled to the same constitutional protections enjoyed by newspapers, which are generally free to publish whatever they want without government interference.
Judge Kavanaugh appeared to embrace that position, asking Mr. Whitaker, the lawyer representing Florida, whether states could tell publishers, printers, movie theaters, bookstores and newsstands what to publish.
Whitaker said newspapers and bookstores have “inherently expressive behavior,” while “what we want to say is that these social media platforms are not like that.”
He said that, in fact, the platforms were common media required to carry everyone’s messages and that Florida law protected free speech by ensuring that users had access to many points of view.
Several judges said it was difficult to reconcile the platforms’ arguments Monday with what they had said last year in cases involving Section 230 of the Communications Decency Act, which protects social media companies from liability for what its users publish.
In those cases, Justice Thomas said, the platforms maintained that they were merely conduits for the speech of others. “You are now saying that he is committed to editorial discretion and expressive conduct,” he told Mr. Clement. “Doesn’t that seem to undermine his arguments about Section 230?”
Clement responded that a key part of the provision was intended to protect platforms from liability for making editorial judgments.
Federal appeals courts reached conflicting conclusions in 2022 about the constitutionality of the two laws.
A unanimous three-judge panel of the 11th U.S. Circuit Court of Appeals largely upheld a preliminary injunction blocking Florida’s law.
“Social media platforms exercise editorial judgment that is inherently expressive,” Judge Kevin C. Newsom wrote for the panel. “When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or penalize violations of their community standards, they engage in activities protected by the First Amendment.”
But a divided three-judge panel of the Fifth Circuit overturned a lower court’s order blocking the Texas law.
“We reject the platforms’ attempt to extract a free censorship right from the Constitution’s free speech guarantee,” Justice Oldham wrote for the majority. “The platforms are not newspapers. “His censorship is not expression.”
The Biden administration sided with social media companies in both cases, Moody v. NetChoice, No. 22-277, and NetChoice v. Paxton, No. 22-555.
The Supreme Court blocked the Texas law in 2022 as the case moved forward by a 5-4 vote.
Justice Alito wrote that the issues were so novel and significant that the Supreme Court would have to consider them at some point. He added that he was skeptical of the argument that social media companies have editorial discretion protected by the First Amendment, just like newspapers and other traditional publishers.
“It is not at all obvious,” he wrote, “how our existing precedents, which predate the Internet era, should apply to large social media companies.”
