Guest Author
The Supreme Court recently heard oral arguments challenging the constitutionality of Florida’s “Stop Social Media Censorship Act” (Ashley Moody v. NetChoice) and a similar law in Texas (NetChoice v. Ken Paxton). A decision is expected in June, but justices, often sharply divided on important issues, expressed well-placed skepticism that both state laws were permissible under the First Amendment.
The Florida law, signed by Gov. Ron DeSantis in May 2021, attempts to single out the largest social media platforms (those with over $100 million in annual revenue) and regulate how they may moderate their content. Broad “neutrality” provisions prevent platforms like Facebook from censoring political candidates, news outlets, and ordinary people based on their political opinions.
The Florida and Texas laws were passed when state officials were concerned that Facebook and Twitter (now X) were removing content that expressed conservative views. But the critical First Amendment issues before the Court are not about individuals’ right to speak, but rather whether the government may force private platforms to broadcast this speech.
Imagine if your state government interfered with your favorite newspaper or magazine’s decisions over what to publish or had broad powers to require a publication to publish content repugnant to its owners or readers. It’s not the media outlet’s right to speak that’s at issue — it is the violation of the publication’s First Amendment rights to choose what to publish that makes such acts unconstitutional.
Justice Brett Kavanaugh raised this point and concerns about a precedent of “government-mandated fairness” while questioning Florida Solicitor General Henry Whitaker. Whitaker questioned the relevance of the analogy to editorial control, since “upward of 99% of what goes on the platforms is basically passed through without review.” Justice Elena Kagan pushed back on Whitaker, saying simple and well-defined algorithmic approaches represent editorial judgments, which she believes are protected under the First Amendment.
Justices appeared even less sympathetic to arguments by Florida and Texas attorneys that large platforms like Facebook represent “common carriers,” and that, like the telegraphs of yore or today’s phone companies, they must be legally obligated to transmit communication from customers regardless of content.
Chief Justice John Roberts noted, “The telegraph had a particular[ly] compelling type of monopoly. I mean, if you didn’t want to use the telegraph that was there, you usually didn’t have an alternative choice.” In the “incredibly dynamic” social media platform market, Roberts suggested that the idea of common carriers may be “totally inapt.”
To understand what Roberts means, consider the plight of a group with strongly dissenting opinions — large or small and irrespective of ideology. The country’s media have progressed through stages dominated by print, broadcast, cable television, online journalism and now social media. At almost every stage, the options open to such groups to speak to each other and make their views available to the world at large have grown in variety and shrunk in cost.
People holding minority viewpoints have valid concerns about their ability to be heard on the largest channels, but this right is not protected under the First Amendment. Content moderation is protected on private platforms, and the ability of other users to engage with or choose not to engage with others’ speech only becomes more important as the number and diversity of opinions online grows.
We won’t hear back from the Court until June, and some justices are known for being more prolific questioners than others, so we should be careful not to overly read tea leaves to guess at how they might rule. This undeniably politicized court will doubtless find ways to dissent or narrow any ruling.
But consider Justice Sonia Sotomayor’s crystal-clear statement: “I have a problem with laws like this that are so broad that they stifle speech just on their face.” We heard much from the justices that was both consistent with this bedrock American idea and skeptical of the Florida and Texas laws.
On a bench and in a country rife with division considered by many among the sharpest in our history, a strong and united ruling that the two state laws are unconstitutional — based on core free speech principles — could be a powerful moment from the Roberts Court.
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Dr. Adrian Moore is vice president of the Reason Foundation, where Max Gulker is a senior policy analyst. The Reason Foundation and several co-signers submitted an amicus brief to the Supreme Court, agreeing with NetChoice that the Florida and Texas laws violate the First Amendment. The full brief and a summary can be found at reason.org.
