The Supreme Court on Monday waded into the thorny intersection of social media companies and free speech, struggling to figure out whether state laws seeking to stop the tech giants’ censorship is worse than the censorship itself.
Justices seemed skeptical of the states’ cases that they can control how Facebook and YouTube police their pages, but they were troubled by the tech companies’ claims that they should be able to censor emails sent through Gmail or direct messages and WhatsApp based on the political beliefs of users.
The companies said depending on how the justices rule, the social media giants would have to rethink their operations.
Paul Clement, arguing on behalf of NetChoice, a group of internet firms challenging the state laws, said companies might have to err on the side of more suppression.
That could mean companies would take down pro-Israel speech because they don’t want to allow antisemitic speech, and would have to take down suicide prevention messages because they don’t want to carry self-harm messages.
“We’d basically have to eliminate certain areas of speech entirely,” he said.
Many of the justices were sympathetic to those arguments, and particularly to the point that it’s better to have the companies policing their own forums with their own rules than to have government agencies step in.
“Do you want to leave it with the government, with the state, or do you want to leave it with the platforms?” said Chief Justice John G. Roberts Jr. “The First Amendment has a thumb on the scale when that question’s asked.”
The battle involves laws Florida and Texas passed in 2021 in the wake of the 2020 election and amid the censorship battles of the pandemic, when Twitter, Facebook and YouTube were scouring their sites for content they deemed inappropriate, inaccurate or harmful.
Egged on by the federal government, the social media giants limited the reach of posts that questioned the push for people to get vaccinated and wondered if the virus had escaped from a Chinese lab. Twitter infamously blocked access to a New York Post’s story revealing the Hunter Biden laptop, wrongly claiming it was Russian disinformation.
Texas’ law prohibits social media companies from removing and moderating content some might find offensive or hateful. It also requires disclosure of some business practices, such as algorithms used to promote content.
Florida’s law calls for hefty fines of up to $250,000 a day on large social media companies that deplatform political candidates.
One federal appeals court upheld Texas’ law, while another ruled against Florida’s legislation. Both laws are on hold pending the Supreme Court‘s action.
The case underscored the central role the internet has taken in the 21st century and poked at several areas where the law is struggling for answers.
“What do you do with the fact that now, today, the internet is the public square?” said Justice Ketanji Brown Jackson.
The Biden administration’s lawyer and the lawyer for the internet companies told the justices during Monday’s lengthy arguments that if the government were to do what the companies are doing, it would be censorship.
But when it’s done by private actors, it’s not censorship because the companies have their own First Amendment speech rights that the state laws trample.
“When I think of Orwellian, I think of the state. Not private sector, not private individuals,” said Justice Brett M. Kavanaugh.
The problem, said Justice Clarence Thomas, is that Congress in Section 230 of the Communications Decency Act gave the tech companies special liability protections over what people post on their sites, but with the understanding that the companies weren’t policing those posts over viewpoints.
“Now you are saying that you are engaged in editorial discretion and expressive conduct. Doesn’t that seem to undermine your Section 230 argument?” Justice Thomas prodded.
Mr. Clement said Congress wanted freedom from liability but also robust experimentation, which includes setting rules for companies’ forums.
Justice Samuel A. Alito Jr. said that sounded like a heads-I-win, tails-you-lose proposition.
“It’s your message when you want to escape state regulation, but it’s not your message when you want to escape liability under tort law,” Justice Alito said.
The states’ lawyers pushed the justices to recognize the tech platforms as “common carriers,” akin to delivery or telephone companies. They’re not allowed to alter service based on a customer’s viewpoint.
Henry Whitaker, solicitor general of Florida, said the companies don’t have a message, so there’s no First Amendment violation for the platforms.
“Internet platforms today control the way millions of Americans today communicate with each other and the world,” he said.
Chief Justice Roberts was skeptical, saying the other businesses operated as monopolies, and users didn’t have alternatives.
“I am not sure the same thing applies with respect to social platforms,” he said.
Justice Elena Kagan, meanwhile, noted the companies have their own rules for monitoring speech.
“They do seem to take them seriously,” she said. “They are making content judgments about the kind of speech they think they want on the site.”
Part of the problem was the way the cases came to the high court.
Both state laws were challenged on their face, which means the internet companies were saying they were unconstitutional in nearly every application. That also meant a lot of key questions weren’t answered, including basic things such as which companies and platforms are even covered.
“I think that’s a problem in this case,” Justice Jackson said. “We’re not all aware of the facts of what’s happening.”
The cases are Moody v. NetChoice and NetChoice v. Paxton. Ashley Moody is Florida’s attorney general, and Ken Paxton is Texas’ attorney general.
Decisions are expected by the end of June.