Supreme Court to decide if states can control fate of social media

To participate in the internet’s leading Star Trek forum, Reddit users must abide by a simple rule: “Be nice.”

So when a user called one of the franchise’s characters a “soy boy” - a pejorative term insulting a person’s masculinity - in 2022, the discussion board’s volunteer moderators kicked him out.

But the user shot back, filing a lawsuit against Reddit under a landmark Texas law prohibiting social media companies from removing posts or accounts based on a viewpoint - an unprecedented regulation subverting how the internet has operated for decades.

The Supreme Court on Monday will hear oral arguments to determine the constitutionality of that Texas law along with a related Florida law, which prohibits platforms from suspending the accounts of political candidates or media publications.

The cases will determine whether state governments or tech companies have the power to set the rules for what posts can appear on popular social networks.

Republican leaders adopted the laws in response to growing concern among conservatives that social media giants were censoring their political views.

Tech companies, represented by the trade group NetChoice, argue the laws give the government too much control over online speech in violation of the First Amendment and have the potential to usher in a patchwork of different internet laws rooted in political whims of state leaders.

This “splinternet” is starting to emerge in the United States, as regulations governing the internet diverge along political and state lines. In the absence of federal mandates, red states are pushing forward with laws that could make it harder for companies to remove content from their services, while blue states, including California and New York, have passed transparency measures encouraging companies to remove violent and other harmful posts.

The court’s ruling could have sweeping implications for a host of federal and state efforts to regulate social media companies - on issues ranging from children’s safety to artificial intelligence. To fight back, the tech industry increasingly uses the First Amendment as a shield, and legal experts warn an overly broad ruling in favor of the companies could establish a constitutional right to bat away regulation.

Because social networks play a central role in political discourse, the high court decision will have expansive consequences beyond business, for the future of American democracy. A decision in the cases is expected by late June, in the critical months before the U.S. presidential election.

“It’s difficult to think of any other recent First Amendment case in which the stakes were so high,” said Jameel Jaffer, executive director of the Knight First Amendment Institute, in a news release.

The tech industry groups, national security officials and researchers say limiting companies’ abilities to remove content could allow misinformation, terrorism and other harmful activities to fester online. Florida and Texas meanwhile warn that a handful of social media companies wield a powerful grip on modern political discourse, and that regulations are needed to ensure they don’t discriminate. Former president Donald Trump submitted a brief defending the Florida law, in a signal of the cases’ implications for the 2024 presidential election.

The cases are upending traditional party politics and inspiring odd bedfellows. The Biden administration, which has largely taken a tough line against Silicon Valley, filed a brief siding with the companies, arguing that the state laws go too far and that the First Amendment protects social networks just like bookstores, editorial pages and theaters.

Meanwhile, a group of liberal law professors, including former Biden tech adviser Tim Wu, filed a brief siding with the Republican-led states. A ruling for the tech companies could stifle other efforts to regulate social media companies, including children’s online safety laws, antitrust mandates and nascent efforts to rein in artificial intelligence, they wrote.

“The First Amendment does not mandate giving tech companies super-immunity when they open their digital properties for public use,” wrote the professors, in a brief jointly submitted by the American Economic Liberties Project, an anti-monopoly advocacy group.

A showdown at the Supreme Court

The 2021 state laws came amid growing unease from conservatives that companies like Facebook and Twitter had obtained an iron grip on American political discourse. Republicans’ long-running accusations that tech companies censored their political views reached a fever pitch in the fallout of the pandemic and the 2020 election, as tech companies frequently attached labels to Trump’s false claims online. Facebook, Google and Twitter put a fine point on their immense power and took the extraordinary step of suspending the sitting president’s social media accounts after the Jan. 6, 2021, attack on the Capitol.

NetChoice and the Computer & Communications Industry Association, a pair of tech industry trade groups, have been embroiled in litigation over the Florida and Texas laws for nearly three years. The companies and states asked the Supreme Court to weigh in after the U.S. Court of Appeals for the 5th Circuit in 2022 upheld the Texas law. The decision created a split with the U.S. Court of Appeals for the 11th Circuit, which struck down key provisions of the Florida law earlier that year.

All the of appeals court judges who have considered the Florida and Texas laws were nominated by Republican presidents. Judge Kevin Newsom, a Trump nominee on the 11th Circuit, wrote the unanimous opinion blocking Florida’s law. Another Trump nominee, Judge Andrew Oldham of the 5th Circuit, wrote a conflicting opinion upholding the Texas law.

The Supreme Court temporarily put the Texas law on hold in May 2022. Conservative Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, said he had not made up his mind about the novel legal questions presented by the case governing a “ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”

“It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies,” Alito wrote.

When he was an appeals court judge, conservative Justice Brett M. Kavanaugh provided a window into his thinking in several cases involving the First Amendment and government regulation of communications companies.

“When a market is competitive, direct interference with First Amendment free speech rights in the name of competition is typically unnecessary and constitutionally inappropriate,” Kavanaugh wrote in a 2010 case involving cable company regulations.

A newspaper or a telegraph?

The case hinges on divergent interpretations of how law set in the era of newsprint and telegraphs should apply to social media, which has evolved into the dominant arena for American political debate.

NetChoice argues that the Supreme Court should treat companies like newspapers and shield their right to exert “editorial discretion” about what videos or accounts appear on their services.

Paul Clement, a former solicitor general representing NetChoice, told the court the laws unfairly target large platforms, omitting smaller sites, including the right-leaning companies, Parler and Gab.

Florida has “unabashedly singled out certain companies for these onerous restrictions based on unconcealed hostility to how they exercise their editorial discretion,” Clement wrote. “When it comes to disseminating speech, decisions about what messages to include and exclude are for private parties - not the government - to make.”

Though the Reddit case was dismissed on procedural grounds, the company said in a brief to the Supreme Court that it foreshadows the “the flood of potential lawsuits” companies could face under the Texas and Florida laws. Reddit said in a brief submitted to the court that the view that the character Wesley Crusher is a “soy boy” is “undoubtedly protected by the First Amendment.”

“The user who made that post on Reddit would be entitled to hold a sign with that message in a public park or to print and distribute leaflets making that claim,” the company wrote. “But he did not have a right to express that message in a digital space managed and controlled by others.”

But Florida and Texas argue the laws regulate the actions that companies take, not their speech, and do not fall under the First Amendment. Platforms are “gatekeepers of the ‘modern public square,’” Texas Attorney General Ken Paxton argued in a brief in the case, and some decisions to remove people or posts amount to discrimination, he said. Paxton writes that social networks should be classified as “common carriers,” a designation that governments have applied to ensure the public can access key utilities such as phone companies and railroads.

“Like the telegraph companies of yore, the social media giants of today use their control over the mechanics of this ‘modern public square,’ to direct - and often stifle - public discourse,” Paxton wrote in his brief.

Tech companies have frequently invoked the First Amendment to fight against state laws, with mixed success. In December, a federal judge in California dismissed a lawsuit from X, formerly known as Twitter, challenging the state’s social media content moderation laws under the First Amendment. Several months earlier, a federal judge blocked another law in the state intended to protect children online, after NetChoice argued the provision would pressure the companies to become “roving censors.”

First Amendment experts say that both sides’ arguments in the Florida and Texas cases are flawed. The court needs to reach a nuanced decision that rejects both sides’ “extreme views of the First Amendment,” said Scott Wilkens, senior counsel at the Knight First Amendment Institute.

He also warned that the court must consider how rapidly the politics of social networks can evolve. Since the laws were first enacted in 2021, Elon Musk purchased Twitter and made policy decisions that have allowed conservative accounts to flourish on the platform. Facebook and other companies have made cuts to teams that respond to misinformation and harmful content.

“It’s very important for the future of public discourse online that the Supreme Court take the longer view when it decides the NetChoice cases,” Wilkens said. “The fears and concerns about social media platforms today may not be those of tomorrow. We don’t want a decision that can’t stand the test of time.”