Big Tech in the dock over censorship of conservatives

Justices on the Supreme Court wrestled with the tension between free speech and government regulation on Monday as they considered challenges to laws regulating social media platforms. Florida and Texas passed the laws in question to prevent Big Tech companies from censoring conservative viewpoints.

Over the course of nearly four hours of argument, justices across the ideological spectrum seemed concerned about the specter of censorship.

Referring to the platforms’ term “content moderation,” Justice Samuel Alito asked, “Is it anything more than a euphemism for censorship?” Later, he added, “Does Gmail have a First Amendment right to delete, let’s say, Tucker Carlson’s or Rachel Maddow’s Gmail accounts if they don’t agree with his or her viewpoints?”

With some important exceptions, the Texas law bars platforms from censoring users because of their political viewpoints and requires companies to disclose their content management and moderation policies. If a platform removes a user’s content, it must provide the user with a complaint and appeals process and say why the content was removed. NetChoice, a trade group representing the platforms, challenged the law in September 2021, arguing it violated the private companies’ free speech.

Florida’s law operates similarly, barring censorship or deplatforming of both political candidates and “journalistic enterprises.” Like the Texas law, it requires that companies notify users when they take action to remove or flag their posts or deplatform them. Unlike the Texas law, it lays out stiff financial penalties for providers who violate the law. NetChoice also challenged the Florida law in a complaint filed in May 2021.

An earlier circuit court split boosted odds that the Supreme Court would hear the twin cases. In 2022, the Atlanta-based 11th U.S. Circuit Court of Appeals upheld a lower court order blocking a 2021 Florida law regulating content moderation by social media platforms like Facebook, TikTok, YouTube, and X, the platform formerly known as Twitter. A month later, the New Orleans-based 5th U.S. Circuit Court of Appeals reached the opposite conclusion, upholding the Texas law—though the Supreme Court put a hold on the order while it considered the case.

One question loomed large over the long proceedings: Given their size and importance, are the social media platforms “common carriers,” like telephone and telegraph companies, who can be required to serve everyone? Or are they more like publishers, who retain First Amendment rights to exercise editorial discretion over content posted?

“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,” Texas argued in its brief. Just as telegraph companies are deemed common carriers and subjected to regulation to safeguard the free exchange of ideas, so too should the platforms be open to all, the state said. The state of Florida similarly argued in its brief that hosting content created by others is a business activity and subject to regulation by the state.

Tech companies countered that they have to make billions of editorial decisions each day—and that, they say, is protected speech. Justice Clarence Thomas questioned whether content moderation counts as “speech.”

“What are they saying?” Thomas asked Florida Solicitor General Henry Whitaker. “They are censoring as far as I can tell, and I don’t know of any protected speech interests in censoring other speech.”

Yet the tech companies argued that there is no tradition of treating a private party that publishes speech as a common carrier.

“Just as the government may not tell the Miami Herald which editorials to publish or MSNBC which interviews to broadcast, the government may not tell Facebook or YouTube which third-party speech to disseminate or how to disseminate it,” they stated in the Florida brief.

U.S. Solicitor General Elizabeth Prelogar, arguing on behalf of the Biden administration, sided with the tech companies. Prelogar said that, while the companies were not beyond the reach of regulation, in this case they were protected by the First Amendment because the states had not shown a compelling interest in forcing them to increase a diversity of views on their platforms. She suggested a narrowly tailored ruling by the court, sidestepping questions about the breadth of the law—that is, whether it reached Gmail or Facebook’s messaging app.

Law professors, nonprofits, and legal groups filed friend-of-the-court briefs for the states and the tech companies. Some, like the Becket Fund for Religious Liberty, took no side but cautioned against a court ruling that might not be sufficiently nuanced. Becket sought to distinguish the speech at issue from the greater protection afforded religious speech at the heart of the First Amendment.

It was not clear where the discussion left the justices. “I don’t know how we could decide this case by … jumping to one side or the other of this case law,” said Alito.

In the end, the court may choose to avoid ruling on the thorny issues presented by the case. Since a trial court ruled on the Florida case while it was still at an early stage, Justices Alito and Sonia Sotomayor said the facts were not sufficiently developed. Both agreed it may be necessary to vacate the lower court ruling and send the cases back for further development of the facts. That seemed less likely in regard to the challenge to the Texas law, as there was more of a factual record and the law was more narrowly targeted on the large social media platforms.

One question asked by Justice Elena Kagan hung in the air: “What do we do?” Advocates for the states and Big Tech seemed confident of the answer—the court, less sure.

A ruling is expected by the end of June.