Earlier this week, the U.S. Supreme Court heard oral arguments in two cases which could drastically change the nature of internet discourse. The cases, NetChoice v. Paxton and Moody v. NetChoice, involve Florida and Texas laws which are designed to limit social media companies from discriminating among content on their platforms. The laws emerged after the January 6, 2021, attack on the U.S. Capitol, in response to decisions by Facebook and Twitter (now called X) to ban former President Trump from their platforms. The Supreme Court's decision will be among the most important First Amendment jurisprudence in modern times.
The states maintain that social media companies should be precluded from discriminating among users based upon the content of their views. According to Henry Whitaker, Florida's solicitor general who appeared in front of the court to defend the law, "Internet platforms today control the way millions of Americans communicate with each other and with the world. (They) have no First Amendment right to use their services as a choke point to silence those they disfavor." Governor DeSantis agreed, stating "When you de-platform the president of the United States but you let Ayatollah Khamenei (Iran's supreme leader) talk about killing Jews, that is wrong." The cases also reflect the deep division in political views among Americans. When signing the Texas bill into law, Governor Abbott said, "It is now law that conservative viewpoints in Texas cannot be banned on social media."
The social media companies and opponents of the laws argue that such restrictions infringe upon their editorial discretion. According to the social media companies, they have a First Amendment right to censor material they determine to be inappropriate, such as hate speech and extremist content. Critics argue it is unconstitutional for states to prohibit social media companies from moderating content according to their own standards. The platforms should not be forced to disseminate speech which violates their rules. The social media companies urged the Court to prohibit the government from dictating how they moderate online content.
During oral arguments, the justices addressed the distinctions between social media platforms and traditional news outlets, recognizing the vast amount of material on the internet and variety among platforms. In discussing whether editorial protections given to newspapers were equally applicable to social media companies, Justice Alito asked, "if YouTube were a newspaper, how much would it weigh?" The justices also noted the lack of information about which sites would be affected by the laws and what actions on those sites might be covered. Both laws have been temporarily paused pending the Supreme Court's decision, which is expected by late June.
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