Justices weigh Texas, Florida laws regulating Big Tech content moderation

by Kate Scanlon, OSV News

WASHINGTON (OSV News) — The Supreme Court heard oral arguments Feb. 26 in cases challenging the constitutionality of laws in Florida and Texas that seek to limit the ability of social media companies to moderate content on their platforms.

During almost four hours of argument, the justices considered whether state governments can regulate how social media platforms moderate the content posted on their platforms in a case that could have implications for the future of online discourse.

Justices from across the ideological spectrum asked probing questions about the scope of the laws, at times expressing frustration with the lack of clarity, for instance, about even which companies are covered by the laws. Some of the justices appeared inclined to return the case to lower courts to resolve those questions.

The laws passed in Florida and Texas follow allegations from some conservatives that social media companies deliberately censor right-of-center viewpoints. Those states passed laws seeking to limit ways in which social media platforms can block or remove content.

Such critics point to Twitter’s suspension of then-President Donald Trump after the Jan. 6, 2021, riot at the U.S. Capitol building, during which his supporters attempted to block Congress’ certification of President Joe Biden’s 2020 election victory following a nearby rally.

Twitter argued at the time that it would suspend Trump to prevent risk of further incitement to violence. Trump’s account was later restored after Elon Musk took over the company, now known as X.

Gov. Ron Desantis, R-Fla., said in a Feb. 26 video posted on X that his state’s law was aimed at protecting those who had been “deplatformed” by “Big Tech.”

“Does Big Tech have a right to just simply censor regardless of any protections for the consumer?” DeSantis said.

Eric Goldman, a law professor at the Jesuit-run Santa Clara University who filed an amicus brief in the Texas case, argued in comments shared with OSV News that the laws in question “were never serious policy proposals; instead, the legislatures simply wanted to signal to voters that they hated ‘Big Tech.'”

“The laws assembled a multitude of disparate policy ideas about how the legislatures could ‘censor’ social media platforms,” Goldman said, arguing the laws “violated the First Amendment in several ways” according to the high court’s own precedent.

“The main question is: has the Supreme Court’s interpretation of the First Amendment changed in the intervening 27 years?” he said. “If it has, legislatures can and will enact censorship laws that will completely change how the Internet works.”

Goldman noted the justices appeared at times “baffled” by “the indeterminacy of who the law reaches and which functions are regulated,” leaving them unclear about the law’s scope.

However, Goldman said even if the court rules “decisively” for the tech industry on every issue, the justices’ opinion “will surely contain caveats and hypotheticals that will inspire regulators to make further attempts to censor the Internet.”

A decision by the court is expected prior to the end of its current term, which typically ends in June.

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