The Supreme Court heard four hours of argument Monday over two cases that have the potential to dramatically shift the rules governing the regulation of social media networks.
But the early indications are that the Court has issues with two state laws intended to add new strictures on the ability of social media sites to regulate posts on their platforms.
The hearing surrounded laws in Texas and Florida intended to set new restrictions on the ability of social networks to remove certain kinds of political speech from their platforms. Florida’s proposed law was struck down by a lower court; the Texas law was upheld; and the Supreme Court proceedings on the two should help sort out whether or not state legislatures have the power to set rules governing the takedown of content by
Facebook,
YouTube and other social-media platforms.
Both cases pitted the states against NetChoice, an internet industry trade group that has opposed both laws. The Texas case is NetChoice v. Paxton; the Florida case is Moody v. NetChoice.
The Florida law limits the ability of social-media platforms to remove content from political candidates and media outlets, in the process making it harder for them to remove content views as harmful or inaccurate. The Texas law is more broadly written, and would make it almost impossible for social-media platforms to remove any content based on a point of view.
Republicans generally support these restrictions, on the theory that their views are sometimes suppressed in social-media platforms, while the laws are generally opposed by Democrats, who think the laws will trigger an increase in extreme political content.
The lively and often prickly discussions on Monday made it clear that the justices have some concerns about the laws, and how they would relate to both the First Amendment and the Section 230, a federal statute that essentially protects social media sites from liability for content posted by users. Another key debate was whether social media sites should be treated as “common carriers” like phone companies and delivery services, or whether they are more akin to publishers, with the right to be discriminating in the content on their platforms.
Thomas Berry, a research fellow with the Center for Constitutional Studies at the Cato Institute, a libertarian think tank, said in a comment shared with Barron’s that it appears that a majority of the court are likely to find the two laws violate the First Amendment, “at least when they force traditional social media sites like Facebook and X to change their moderation practices and disseminate speech they want to exclude.”
Berry notes that Justice Brett Kavanaugh repeatedly pointed out during the hearing that the First Amendment protects private actors against government censorship, but doesn’t allow the government to tell others what to publish. Berry’s assessment is that only justices Clarence Thomas and Samuel Alito appeared to be sympathetic to the argument that the laws might be fully compatible with the First Amendment.
Write to Eric J. Savitz at eric.savitz@barrons.com
Read the full article here
