Supreme Court casts doubt on Florida, Texas laws regulating social media platforms

WASHINGTON (AP) — The Supreme Court on Monday stayed efforts by Texas and Florida to impose restrictions on how Facebook, TikTok, X, YouTube and other social media platforms regulate content posted by their users, a ruling that vigorously defended the platforms’ free speech rights.

Justice Elena Kagan wrote for the court that the platforms, like newspapers, deserve protection from government interference in determining what to include in their space. “The principle does not change because the composite has moved from the physical to the virtual world,” Kagan wrote in an opinion signed by five justices. All nine justices agreed on the overall finding.

The judges sent the cases back to lower courts for further consideration amid widespread objections from trade associations on behalf of the companies.

While the details differ, both bills sought to address longstanding conservative complaints that the social media companies were liberal-leaning and censoring users based on their views, particularly on the political right. The cases are among several this term in which the justices are grappling with free speech standards in the digital age.

The Florida and Texas laws were signed by Republican governors months after Facebook and Twitter, now X, decided to ban then-President Donald Trump over his posts about the January 6, 2021, attack on the US Capitol by his supporters.

Trade associations representing the companies filed a lawsuit in federal court, claiming the laws violated the platforms’ speech rights. One federal appeals court struck down the Florida law, while another upheld the Texas law. But both were stayed pending the Supreme Court’s outcome.

While the cases are complicated, said Richard W. Garnett, a First Amendment expert and professor at Notre Dame Law School, the justices were clear on two things:

“First, the First Amendment protects what we choose to say, but also what we choose not to say, support, or endorse. That is, free speech also includes editorial discretion. This is true regardless of whether the speaker is an individual or a large media company,” he said. “Second, the government cannot regulate speakers simply to produce what the government thinks would be a better or more diverse marketplace of ideas. What is offered in that marketplace is ultimately up to us.”

In a statement when he signed the Florida measure, Gov. Ron DeSantis said it would be “protection against the Silicon Valley elite.”

When Gov. Greg Abbott signed the Texas law, he said it was needed to protect free speech in what he called the new public square. Social media platforms “are a place for healthy public discourse where information should flow freely — but there is a dangerous movement by social media companies to silence conservative viewpoints and ideas,” Abbott said. “That is wrong and we will not allow that in Texas.”

But a lot has changed since then. Elon Musk bought Twitter and, in addition to changing the name, eliminated teams focused on content moderation, welcomed back many users previously banned for hate speech, and used the site to spread conspiracy theories.

President Joe Biden’s administration sided with the challengers, though it cautioned the court against seeking a narrow ruling that preserved governments’ ability to impose regulations to ensure competition, preserve data privacy and protect consumer interests. Lawyers for Trump filed a brief in the Florida case urging the Supreme Court to uphold the state law.

Freedom of speech advocates saw the ruling as a victory.

“The court’s recognition that the government cannot police social media in an attempt to impose its own vision of what online speech should look like is critical to protecting all of our rights to express our opinions and access information on the Internet,” said Vera Eidelman, a staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “The court’s recognition that the government cannot police social media in an attempt to impose its own vision of what online speech should look like is critical to protecting all of our rights to express our opinions and access information on the Internet.”

Nora Benavidez, senior counsel at the nonprofit media advocacy group Free Press, said that while the decision “rests on procedural grounds, Justice Kagan’s comprehensive opinion for the Court explains in very clear terms why Florida and Texas laws will have a hard time ever standing up to First Amendment scrutiny. That’s a very good thing.”

But it’s a “bumpy victory,” noted Gus Hurwitz, academic director of the Center for Technology, Innovation & Competition at the University of Pennsylvania Carey Law School. He said the justices were “clearly frustrated” that the case came to them as a face challenge — in which the plaintiff argues the law is unconstitutional — and both cases were thrown out and sent back to be “more fully worked out.”

“Five of the justices agree with the straightforward statement that ‘Texas doesn’t like the way these platforms select and moderate content, and wants them to create a different expressive product that communicates different values ​​and priorities. But under the First Amendment, that’s a preference that Texas has no right to impose,'” Hurwitz said. “It’s hard to see how that doesn’t dictate the ultimate resolution of the case, and it clearly spells a bumpy road for these statutes if Texas and Florida move forward with them.”

The cases are among a string of issues that judges have grappled with in the past year involving social media platforms. Among them was last week’s case in which the court dismissed a lawsuit filed by Louisiana, Missouri and others who accused federal officials of pressuring social media companies to silence conservative views.

During oral arguments in February, the justices appeared inclined to toss the laws into effect. Several justices suggested at the time that they viewed the platforms as newspapers with broad free speech protections, rather than as telephone companies, known as common carriers, which are susceptible to broader regulation.

But two justices, Samuel Alito and Clarence Thomas, seemed more willing to embrace the states’ arguments. Thomas floated the idea that the companies are seeking constitutional protections for “censoring other speech.” Alito also equated the platforms’ content moderation to censorship.

The justices also raised concerns about an overly broad ruling that could impact companies that are not the primary target of the laws, including e-commerce sites like Uber and Etsy and email and messaging services.


AP Technology Writer Barbara Ortutay contributed to this story.

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