By Mark Sherman
Associated Press
WASHINGTON (AP) — The Supreme Court cast
doubt Monday on state laws that could affect how Facebook, TikTok, X, YouTube
and other social media platforms regulate content posted by their users. The
cases are among several this term in which the justices could set standards for
free speech in the digital age.
In nearly four hours of arguments,
several justices questioned aspects of laws adopted by Republican-dominated
legislatures and signed by Republican governors in Florida and Texas in 2021.
But they seemed wary of a broad ruling, with Justice Amy Coney Barrett warning
of "land mines" she and her colleagues need to avoid in resolving the
two cases.
While the details vary, both laws aimed
to address conservative complaints that the social media companies were
liberal-leaning and censored users based on their viewpoints, especially on the
political right.
Differences on the court emerged over how
to think about the platforms — as akin to newspapers that have broad
free-speech protections, or telephone companies, known as common carriers, that
are susceptible to broader regulation.
Chief Justice John Roberts suggested he
was in the former camp, saying early in the session, "And 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?"
Justices Samuel Alito and Clarence Thomas
appeared most ready to embrace arguments made by lawyers for the states. Thomas
raised the idea that the companies are seeking constitutional protection for
"censoring other speech."
Alito complained about the term
"content moderation" that the sites employ to keep material off their
platforms.
"Is it anything more than a
euphemism for censorship?" he asked, later musing that term struck him as
Orwellian.
But Justice Brett Kavanaugh, seemingly
more favorable to the companies, took issue with calling the actions of private
companies censorship, a term he said should be reserved for restrictions
imposed by the government.
"When I think of Orwellian, I think
of the state, not the private sector, not private individuals," Kavanaugh
said.
The precise contours of rulings in the
two cases were not clear after arguments, although it seemed likely the court
would not let the laws take effect. The justices posed questions about how the
laws might affect businesses that are not their primary targets, including
e-commerce sites like Uber and Etsy and email and messaging services.
The cases are among several the justices
have grappled with over the past year involving social media platforms. Next
month, the court will hear an appeal from Louisiana, Missouri and other parties
accusing administration officials of pressuring social media companies to
silence conservative points of view. Two more cases awaiting decision concern
whether public officials can block critics from commenting on their social
media accounts, an issue that previously came up in a case involving
then-President Donald Trump. The court dismissed the Trump case when his
presidential term ended in January 2021.
The Florida and Texas laws were passed in
the months following decisions by Facebook and Twitter, now X, to cut Trump off
over his posts related to the Jan. 6, 2021, attack on the U.S. Capitol by his
supporters.
Trade associations representing the
companies sued in federal court, claiming that the laws violated the platforms'
speech rights. One federal appeal struck down Florida's statute, while another
upheld the Texas law. But both are on hold pending the outcome at the Supreme
Court.
In a statement when he signed the bill
into law, Florida Gov. Ron DeSantis said the measure would be "protection
against the Silicon Valley elites."
When Gov. Greg Abbott signed the Texas
law, he said it was needed to protect free speech in what he termed the new
public square. Social media platforms "are a place for healthy public
debate where information should be able to flow freely — but there is a
dangerous movement by social media companies to silence conservative viewpoints
and ideas. That is wrong, and we will not allow it in Texas," Abbott said.
But much has changed since then. Elon
Musk purchased Twitter and, in addition to changing its name, eliminated teams
focused on content moderation, welcomed back many users previously banned for
hate speech and used the site to spread conspiracy theories.
The Biden administration is siding with
the challengers. Lawyers for Trump have filed a brief in the Florida case
urging the court to uphold the state law.
Still, Solicitor General Elizabeth
Prelogar, the administration's top Supreme Court lawyer, cautioned the court to
seek a narrow ruling that blocked the laws. Prelogar said governments maintain
the ability to impose regulations to ensure competition, preserve data privacy
and protect consumer interests.
Several academics and privacy advocacy
groups told the court that they view the laws at issue in these cases as
unconstitutional, but want the justices to preserve the government's ability to
regulate social media companies to some extent.
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