The U.S. Supreme Court will soon weigh in on whether states can pass laws prohibiting major social media companies from censoring views they find disagreeable.
On Monday, the Supreme Court heard oral arguments in the cases of NetChoice v. Moody and NetChoice v. Paxton, which center on whether Texas and Florida can pass laws barring social media platforms from censoring conservative posts.
The high court first heard arguments regarding Florida’s law, Senate Bill 7072 or the “Stop Social Media Censorship Act,” which Gov. Ron DeSantis signed in May 2021.
Florida Solicitor General Henry C. Whitaker asserted that social media platforms like Facebook and Twitter “do not have a First Amendment right to apply their censorship policies in an inconsistent manner and to censor and deplatform certain users.”
Whitaker contends “the state has an interest, a First Amendment interest, in promoting and ensuring the free dissemination of ideas” on “large, powerful businesses like that that have undertaken to host massive amounts of speech and have the power to silence those speakers.”
Justice Brett Kavanaugh asked Whitaker if the law could ever be applied to other entities, like “publishing houses and printing presses and movie theaters” and “bookstores, newsstands.”
“The social media platforms, their terms of service, their content moderation policies are really part of the terms under which they are offering their service to users,” Whitaker replied.
“We certainly agree that a newspaper and a bookstore is engaging in inherently expressive conduct. And our whole point is that these social media platforms are not like those.”
Justice Elena Kagan asked if the law would stop social media platforms from censoring “extremely damaging” misinformation or removing “hate speech or bullying.”
“You still would have to look at the objective activity being regulated, namely, censoring and de-platforming, and ask whether that expresses a message,” Whitaker responded.
Paul D. Clement, a former U.S. solicitor general who argued on behalf of the respondents, told the Supreme Court that he believes the Florida law “violates the First Amendment several times over.”
“It interferes with editorial discretion. It compels speech. It discriminates on the basis of content, speaker and viewpoint,” Clement continued. “This statute defines the targeted websites in part by how big their audience is. It regulates the content and display of particular websites, and it tries to prevent my clients from censoring speakers and content.”
Justice Clarence Thomas brought up Section 230 of the Communications Decency Act of 1996, which gives technology companies immunity from civil liability regarding content added to or removed from their online platforms.
