Social Media Laws Could Soon Be Tested at the Supreme Court
New laws in Florida and Texas set the stage for states to have more control over what’s posted on social media, but that could soon be tested at the U.S. Supreme Court and mean potential changes to the First Amendment.
October 20, 2022 •
Should the First Amendment protect social media companies’ editorial discretion? Or should states have a say in what content they host? The answers to these questions hang in the balance as the U.S. Supreme Court decides whether to review a Florida bill that attempts to prevent social media companies from “deplatforming” political candidates.
The legislation in question, Senate Bill 7072 , looks to levy fines and impose penalties against platforms that block or inhibit content from political candidates and media organizations.
Florida Gov. Ron DeSantis signed the legislation on May 24, 2021, but shortly afterwards, NetChoice and the Computer and Communications Industry Association sued the state, resulting in a judge blocking the bill because of First Amendment concerns.
In response, Florida Attorney General Ashley Moody filed an appeal last month asking the Supreme Court to overturn that decision.
WILL THE SUPREME COURT STEP IN?
It just might, especially since a similar social media law in Texas was upheld by the Fifth Circuit Court of Appeals and then put on hold again last week as tech groups seek review from the Supreme Court.
Texas’ HB 20 prevents social media platforms from “censoring a user, a user’s expression, or a user’s ability to receive the expression of another person based on the viewpoint of the user or another person.”
The law also allows Texans to sue social media companies for censoring their content.
Because of these conflicting court rulings, it could be enough to prompt the Supreme Court to weigh in.
WHAT HAPPENS NEXT?
The First Amendment will be put to the test, legal experts say.
“It’s clear, as a matter of law, that social media platforms have First Amendment rights,” said Scott Wilkens, senior counsel at the Knight First Amendment Institute. “They clearly have First Amendment rights because they exercise what we call editorial judgment in certain contexts.”
“In previous Supreme Court cases on the First Amendment, it has been made clear that when an organization disseminates speech or exercises editorial judgment, it is engaging in speech that the First Amendment protects,” Wilkens added.
In addition to protecting editorial judgment, the First Amendment also protects entities, people and companies from the government being able to regulate speech.
In this case, though, these bills are trying to argue several different positions:
Florida’s bill looks to tackle the concept of “deplatforming,” which became prominent after the events of Jan. 6, 2021, and the subsequent platform bans placed on former President Donald Trump for his role — real or perceived — in the breach of the U.S. Capitol.
Texas’ bill, on the other hand, specifically addresses social media companies censoring users’ speech on their platforms.
Despite these laws asking for different things, similar arguments have been used to advocate for both. For example, lawmakers in support of the bills argue that social media companies are common carriers, which is “a service that holds itself out to all members of the public in providing essential goods and services,” according to First Amendment advocacy group Freedom Forum .
Some companies that fall under this category include phone, water and power companies.
In this case, social media companies are being compared to common carriers because they dominate the market and supply essential public services, such as carrying information from one user to another.
It’s for this reason that lawmakers argue social media companies should be treated the same as other common carriers in terms of not being able to discriminate among customers based on content.
This argument seems to fall flat, according to NetChoice Counsel Chris Marchese.
“The only way for them to regulate social media content moderation is if the courts agreed that social media businesses are common carriers because common carriers traditionally have less discretion than purely private businesses,” Marchese said.
He doubts this will be the case, though, based on prior legal rulings.
“In the 1980s, a utility company in California sued because the state wanted it to include a message in its newsletter to customers, and the Supreme Court said, ‘No, you cannot force the utility company to include your message,’ even though it is a monopoly,” Marchese told Government Technology. “I think our opponents are trying to murky the waters a little bit by claiming that social media companies are like telephone companies.”
Another argument presented by lawmakers is that social media companies use Section 230 of the Communications Decency Act unfairly.
“Florida and Texas use Section 230 to try to show that social media platforms are engaged in some sort of hypocrisy,” Wilkens said. “They claim under the First Amendment to be engaged in editorial judgment but then claim under Section 230 that they are not publishers.”
For context, Section 230 of the Communications Decency Act protects intermediaries from laws that could hold them legally responsible for what platform users say and do online, protecting the likes of social media companies.
“The states are trying to argue that the position that the platforms take concerning Section 230 undermines the position they take with respect to the First Amendment,” Wilkens said. “But I think what’s important to remember here is that we’re talking about two different legal concepts.”
“The First Amendment and Section 230 are fundamentally different, and these platforms can take advantage of one while taking advantage of the other,” Wilkens added. “It’ll be interesting to see what the Supreme Court makes of the argument.”
THE POSSIBLE OUTCOMES?
Arguments aside, legal experts anticipate a few possible outcomes if the Supreme Court were to rule on Florida’s law.
“We anticipate that the Supreme Court will grant Florida cert petition, and we are confident that First Amendment case law is on our side,” Marchese said. “We believe that the precedents clearly establish that Florida’s law is unconstitutional, and we believe that the Supreme Court is likely to agree and uphold the 11th Circuit’s decision that social media businesses are not common carriers, they are instead private businesses engaged in First Amendment protected activity.”
Another possible outcome, according to Mukund Rathi, an attorney and Stanton Fellow at the Electronic Frontier Foundation, is the Supreme Court could uphold the injunction associated with Senate Bill 7072 and strike down the law.
In Florida’s case, the injunction upheld by the 11th Circuit Court of Appeals states that individuals do not have the right to sue social media companies for allegedly banning a user or censoring their content without notice.
If the law is struck down, it would go back down to the lower court and undergo discovery, which involves reviewing the facts associated with the case. Once that information is reviewed, a permanent decision will be made about Florida’s social media censorship law.
“What’s happening right now is all preliminary,” Rathi said. “It’s about taking the law at face value and looking at what social media companies are doing and if that violates the First Amendment, such that you should put the law on hold while the case proceeds.”
Another option is that the Supreme Court reverses the injunction upheld by the 11th Circuit Court of Appeals, possibly derailing centuries of First Amendment case law.
“The court could say, for example, that this does not violate the First Amendment, or at least the plaintiffs and social media companies have not shown that it violates the First Amendment, which would be disastrous,” Rathi said. “It would overturn centuries of first case law and put all sorts of websites and even physical publishers of speech in jeopardy of having the government come in and tell them what speech they can or cannot publish.”
That’s the worst-case scenario. A final option, however, could see certain portions of the law being struck down while other parts are upheld.
“A conceivable outcome is the Supreme Court could strike down the direct regulations of content moderation but uphold other provisions that deal with transparency and users’ rights online on social media platforms,” Rathi said.
In this case, it might mean social media companies being required to publish information about their content moderation practices and providing users who feel they have been impacted by a social media platform with complaint and appeal procedures.