WASHINGTON (CN) — U.S. Supreme Court justices appeared critical Monday of two laws from conservative states asserting government control over social media feeds but expressed reservations about giving platforms free rein to censor online speech.
“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,” Chief Justice John Roberts, a George W. Bush appointee, said.
Laws from Texas and Florida would prevent social media companies from moderating much of the content on their platforms. The states claim these laws are necessary to counter a left-leaning shift on social media that censors conservative viewpoints.
Red states say these laws are necessary to counter “big tech oligarchs in Silicon Valley,” but Justice Brett Kavanaugh, a Donald Trump appointee, said the laws presented were a more apt example of an Orwellian picture.
“When I think of Orwellian, I think of the state not the private sector, not private individuals … but the state taking over media, like in some other countries,” Kavanaugh said. “We don't want to be that country.”
Justice Elena Kagan, a Barack Obama appointee, said social media companies create standards for their websites and take those rules seriously when removing content. Kagan said platforms could make judgments to limit the reach of anti-vaxxers or insurrectionists, and drew on Twitter’s recent ownership change to demonstrate how content moderation relates to the speech of online platforms.
“Twitter users one day woke up and found themselves to be X users,” Kagan said. “The content rules had changed and their feeds changed, and all of a sudden they were getting a different online newspaper.”
There seemed to be some concern across the bench that not all censoring on social media was protected by the First Amendment. Justice Samuel Alito, a George W. Bush appointee, asked if Gmail could delete accounts it disagreed with.
“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?” Alito asked.
Many of the justices picked up Alito’s concerns. Justice Amy Coney Barrett, a Donald Trump appointee, said the case presented the justices with a lot of “landmines.”
“If what we say about this is that [content moderation is] entitled to First Amendment protection, I do think then that has Section 230 implications for another case,” Barrett said. “So it's always tricky to write an opinion when there might be landmines that would affect things later.”
The social media trade group said this line of questioning missed the point of the laws before the court. Paul Clement, an attorney with Clement & Murphy representing the trade group challenging the laws, said the laws focus on what users see on their social media feeds, not private messages.
Clement said the prohibitions on viewpoint discrimination would force websites to host dangerous speech.
“If you have to be viewpoint neutral, that means that if you have materials that are involved in suicide prevention, you also have to have materials that advocate suicide promotion,” Clement said.
Florida argued that social media companies achieved success by marketing themselves as neutral forums but now want to be viewed more like newspapers.
“The design of the First Amendment is to prevent the suppression of speech, not to enable it,” said the state’s Solicitor General Henry Whitaker. “That is why the telephone company and the delivery service have no First Amendment right to use their services as a chokepoint to silence those they disfavor. Broadly facilitating communication in that way is conduct not speech.”
Texas said social media companies were relying on their novel nature to skirt the First Amendment. The Lone Star State cited editorial choices when the telegraph was first invented which stifled free speech.
The justices struggled with which standard to evaluate the case because of the potential for giving the platforms too much leeway to censor potentially protected speech. The government provided the court with a solution, suggesting a narrowly tailored ruling.
“If I were the court, I would really want to reserve judgment on the application to e-commerce sites to companies like Uber, which don't seem to be creating a comparable type of expressive product and I think the court can save those issues for another day,” U.S. Solicitor General Elizabeth Prelogar said.
The justices will issue a ruling by the end of June.
Follow @KelseyReichmann
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
-
Haiti transitional council sworn in after months of violence April 25, 2024
