The Supreme Court has agreed to hear challenges to laws in Florida and Texas that regulate how social media companies moderate content on their platforms.
Former President Donald Trump had urged the court to hear the Florida case.
The cases are in the public eye because they pit the right of individual Americans to freely express themselves online against the right of social media platforms to make editorial decisions about the content they host. Lawyers say both rights are protected by the First Amendment to the U.S. Constitution.
The Florida case is Moody v. NetChoice LLC (court file 22-277). The Texas case is Netchoice LLC v. Paxton (court file 22-555). NetChoice is a coalition of trade associations representing social media companies and e-commerce businesses.
The court granted the petitions for certiorari, or review, in both cases in unsigned orders on Sept. 29. No justices dissented. The court did not explain why it granted the petitions.
Republicans and conservatives have complained for years about being censored by social media platforms. They were outraged when platforms acted in concert to ban President Trump in January 2021, blocked a New York Post article about Hunter Biden’s laptop, and silenced dissenting opinions about the origins of the COVID-19 virus and on treatments for the disease it causes.
Democrats and liberals, on the other hand, claim the platforms don’t do enough to suppress so-called hate speech and alleged misinformation.
Cases
In Moody v. NetChoice, Florida is appealing a ruling by the U.S. Court of Appeals for the 11th Circuit that blocked portions of Florida Senate Bill 7072, which requires policy transparency and protects user access to platforms.Florida Gov. Ron DeSantis, a Republican, signed the law on May 24, 2021, stating that it makes sure “real Floridians across the Sunshine State—are guaranteed protection against the Silicon Valley elites.”
“Many in our state have experienced censorship and other tyrannical behavior firsthand in Cuba and Venezuela. If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.”
Under the law, platforms are not allowed to ban political candidates and must make public and consistently apply their moderation rules. De-platforming candidates can lead to fines of up to $250,000 a day.
The 11th Circuit struck down part of the statute, finding that “with minor exceptions, the government can’t tell a private person or entity what to say or how to say it.”
Even the “biggest” platforms are “private actors whose rights the First Amendment protects … [and] their so-called content-moderation decisions constitute protected exercises of editorial judgment.”
In September 2022, the U.S. Court of Appeals for the 5th Circuit went in the other direction, finding that Texas law HB 20 was constitutional and rejecting the “idea that corporations have a freewheeling First Amendment right to censor what people say.”
Trump
President Trump filed a friend-of-the-court brief in October 2022 urging the court to grant oral argument in Moody v. NetChoice.“Recent experience has fostered a widespread and growing concern that behemoth social media platforms” are using their power to suppress political opposition, his brief stated.
“This concern is heightened because Platforms often shroud decisions to exclude certain users and viewpoints in secrecy, giving no meaningful explanation as to why certain users are excluded while others posting equivalent content are tolerated.”
Ohio, Arizona, Missouri, Texas, and 12 other states argued in a brief that the internet is the modern-day public square and that social media platforms engaging in censorship “undermine the free exchange of ideas that free speech protections exist to facilitate.” Suppression of ideas threatens “the development of important insights and discoveries, many of which begin as fringe views.”
“If social-media companies are absolutely entitled to censor unpopular views, what is the limiting principle?” the brief said.
“The system cannot work if the public lacks access to the means by which citizens may engage with each other. Censorship by social-media companies thus poses a very real threat to effective self-governance.”
In a brief asking the Supreme Court to leave the 11th Circuit ruling intact, NetChoice defended platforms’ content-moderation policies.
“Anonymity and pseudonymity enabled by the Internet, coupled with the virtually cost-free ability to broadcast all manner of content, has given rise to spam, trolling, and hecklers’ vetoes,” the brief said.
Websites need to be able to enforce “policies directed at speech that is offensive, objectionable, or otherwise contrary to the norms they seek to curate.”
These policies keep platforms “safe and welcoming to wide audiences” and prevent the “incitement to violence, promotion of dangerous pranks, crank medical cures, and harassing statements,” and are demanded by “users and advertisers alike.”
NetChoice and the Computer and Communications Industry Association (CCIA), which is also a party to the appeals, welcomed the Supreme Court’s decision.
“We are pleased the Supreme Court agreed to hear our landmark cases,” Chris Marchese, litigation director at NetChoice, said in a statement.
“Online services have a well-established First Amendment right to host, curate, and share content as they see fit. The internet is a vital platform for free expression, and it must remain free from government censorship. We are confident the Court will agree.”
CCIA President Matt Schruers said the court’s decision was “encouraging.”
“It is high time that the Supreme Court resolves whether governments can force websites to publish dangerous content,” Mr. Schruers told The Epoch Times by email.
“Telling private websites they must give equal treatment to extremist hate isn’t just unwise, it is unconstitutional, and we look forward to demonstrating that to the Court.”
The Epoch Times reached out to the attorneys general of Texas and Florida but had not received a reply as of press time.
