SCOTUS Hears Oral Arguments on Free Speech and Big Tech Censorship

The U.S. Supreme Court is deliberating on a case involving social media companies censoring the political views of users. The court heard oral arguments on Monday in “Moody v. NetChoice” and “NetChoice v. Paxton,” which center on legislation passed by Florida and Texas, respectively, to prevent social media platforms like Facebook or Twitter from banning or censoring the political views expressed by users.

Both cases raised numerous questions regarding the nature of the First Amendment right to free speech. Lawyers for both Florida and Texas argued that their states’ laws protected the First Amendment rights of social media users, while former U.S. Solicitor General Paul Clement, arguing on behalf of the trade association NetChoice, claimed that the laws infringe upon the First Amendment rights of social media companies.

Background

After Florida and Texas passed their laws in 2021, NetChoice — representing corporations such as Amazon, Google, Meta (Facebook and Instagram), PayPal, Snapchat, Twitter, and others — almost immediately challenged them. U.S. District Court Judge Robert Hinkle placed an injunction on Florida’s law. He explained, “Balancing the exchange of ideas among private speakers is not a legitimate governmental interest.” The Eleventh Circuit Court upheld most of that injunction.

Another U.S. District Court granted a preliminary injunction against Texas’s law, determining that the law prohibits constitutionally-protected editorial discretion. In May of 2022, the Fifth Circuit Court issued a stay of the injunction without any explanation, allowing the Texas law to take effect. Just a few weeks later, at the behest of NetChoice, the Supreme Court vacated the Fifth Circuit Court’s stay in a 5-4 decision. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch dissented, explaining that the “novel” stipulations of Texas’s law should preclude the court from weighing in so early, given the absence of precedent. Justice Elena Kagan also voted to deny the stay but without explaining her decision.

Shortly afterwards, the Fifth Circuit Court remanded the case to the district court, ruling that the lower court should not have issued its injunction. The circuit court determined that “censorship is not speech,” and is therefore not constitutionally protected. The resulting conflict between the Fifth and Eleventh Circuit Courts’ rulings contributed to the Supreme Court agreeing to hear the cases.

Arguments

The Supreme Court announced in September it would take up both cases and heard arguments jointly on Monday morning. The justices focused on two restrictions common to both the Florida and Texas laws: regulations on how social media corporations suppress or censor user-generated content and requirements that those corporations provide individualized explanations for their content moderation decisions.

Lawyers for Florida and Texas argued that their states’ laws treat social media corporations as “common carriers,” which are prohibited from refusing service to others based on the basis of “viewpoint discrimination.” They explained that the states’ laws do not impede the First Amendment rights of social media corporations but only seek to modify how those corporations regulate the speech hosted on their platforms to ensure unbiased treatment of users with differing political positions.

“Internet platforms today control the way millions of Americans communicate with each other and with the world. The platforms achieved that success by marketing themselves as neutral forums for free speech,” explained Henry Whitaker, Florida’s Solicitor General, in his opening remarks. “They now say that they are, in fact, editors of their users’ speech, rather like a newspaper. They contend that they possess a broad First Amendment right to censor anything they host on their sites, even when doing so contradicts their own representations to consumers.”

Whitaker said that “the design of the First Amendment is to prevent the suppression of speech, not to enable it.” He clarified, “That is why the telephone company and the delivery service have no First Amendment right to use their services as a choke point to silence those they disfavor. Broadly facilitating communication in that way is conduct, not speech. … Social networking companies too are in the business of transmitting their users’ speech.”

Aaron Nielson, solicitor general of Texas, advanced similar arguments. Referring to social media as the “modern public square,” Nielson said, “Yet, if platforms that passively host the speech of billions of people are themselves the speakers and can discriminate, there will be no public square to speak of.” He stated that the Texas law “is a modest effort to regulate such power in the context of viewpoint discrimination.”

“Platforms can say anything they want,” he emphasized. “There’s no limit. They can say anything they want. Users can block anything they don’t want. There’s no limit on that. All that’s left is voluntary communications between people who want to speak and people who want to listen.”

Clement, on the other hand, argued first that the First Amendment “only applies to state action.” The bulk of the former U.S. solicitor general’s argument rested on the contention that social media corporations actively participate in the speech of users by hosting it, and thus have a First Amendment right to editorial discretion over what is, at least in part, their own speech as generated by users. “If you are telling the websites that they can’t censor speakers, you can’t turn around and say you’re regulating expressive activity,” Clement said. “It’s all over this law.”

Questions

During arguments, justices brought up questions about the scope of the First Amendment, the definition of social media platforms, and even the very nature of online speech. One of the chief questions justices contended with was whether or not social media corporations could be classified as common carriers, barred from viewpoint discrimination, or as private entities along the lines of newspapers, free to moderate content and speech at will. This in turn raised the question of whether or not communication platforms like Gmail would then be permitted to discontinue private messaging on the basis of viewpoint discrimination.

Justice Sonya Sotomayor also raised the question of what constitutes a social media corporation under Florida’s and Texas’s laws. In particular, she noted that an online marketplace like Etsy features user-generated content and has specific policies that users are expected to abide by — just like platforms such as Facebook or Twitter. “It’s a free marketplace, it’s open to everyone, but it says to the people who come onto its marketplace, ‘We only want this kind of product,’” Sotomayor explained to Whitaker. “They’re going to have to censor. They’re going to have to take people off. They’re going to have to do all the things that your laws say they can’t do without all of these conditions.”

Referring to social media censorship, Thomas asked Clement, “If the government did what your clients are doing, would that be government speech?” Clement admitted that, even if it were considered speech, it would be unconstitutional. When the government exercises “editorial discretion to censor some viewers or some speakers and not others,” Clement continued, “that plainly violates the First Amendment.” He admitted, “There are things that, if the government does, is a First Amendment problem and if a private speaker does, we recognize that as protected activity.”

Thomas followed up, “So can you give me one example of a case in which we have said the First Amendment protects the right to censor?” He continued, “I’ve been fortunate or unfortunate to have been here for most of the development of the internet. And the argument under Section 230 has been that you’re merely a conduit… Now you’re saying that you are engaged in editorial discretion and expressive conduct.”

Alito called the censorship measures enacted by social media corporations “Orwellian,” but Justice Brett Kavanaugh retorted, “When I think of Orwellian, I think of the state.” Chief Justice John Roberts seemed to agree, asking, “I wonder, since we’re talking about the First Amendment, whether our first concern should be with the state regulating what … we have called the modern public square?”

Of note, current U.S. Solicitor General Elizabeth Prelogar (not party to either case) appeared on behalf of the Biden administration, arguing in defense of NetChoice. This follows journalists and Congress exposing the federal government — and intelligence agencies in particular — for coordinating with social media corporations to suppress and censor political speech online, even when that speech was journalistic reporting or factually accurate.

The court is expected to issue its ruling on both cases in June.