Social Media Laws in SCOTUS

Credit: Ian Hutchinson

In 2022, Elon Musk bought Twitter for 44 billion dollars, renaming the platform X and lifting many of the site's moderation policies (Martin 2022). Musk’s move occurred about a year after Florida and Texas signed laws to combat moderation policies on large social media sites, claiming there was an unfair attack against conservative voices. 

This week, the debate between the right to free speech and social media control made its way to the Supreme Court. On February 26th, SCOTUS heard arguments for the case Moody v. NetChoice (Marimow 2023). The case could have significant implications for how the government defines and views social media companies and the role of the First Amendment in social media.

The case comes from 2021 state laws in Florida and Texas that would prohibit large social media platforms from removing content and accounts that platforms may find objectionable. Following X’s (formerly Twitter’s) ban of former President Donald Trump along with tens of thousands of other users, Florida and Texas responded by instituting laws that would make it difficult for social media companies to control their content. Conservatives argue that these bans mean that, as Florida State Senator Blaise Ingoglia said, “our freedom of speech as conservatives is under attack by the ‘big tech,’” (FlGov 2024).

Still, there are nuances to each of the laws. As such, the Florida law, S.B. 2707, allows Florida to fine large social media companies (excluding Disney) for banning political candidates and journalists, the Florida Attorney General to sue companies if they break these rules, and Floridian citizens to sue large social media companies if individuals believe the sites treat them unfairly (Farrington 2022). In Texas, the law is more specific and less extreme but follows a similar premise that companies cannot easily take down posts or suspend accounts, and if they do, they must provide a public explanation for doing so (Vidales 2022).

Soon after the Florida law passed, it spent most of its life in the courts and was never implemented. Texas’ House Bill 20 also spent time stuck in legalities, though it eventually went into effect (Vidales 2022). Nonetheless, once the Supreme Court decided to take up the case, it was again suspended, bringing up another issue at play. Supreme Court justices have yet to really see the law enforced. Some justices are considering the idea of implementing it to understand its consequences and how it would affect freedom of speech (Savage 2024). 

Another unanswered question is the extent to which a decision in this case may influence other content moderation policies on other sites. Justices asked how the decision may apply to platforms like Uber or Etsy, and what kind of discretion over speech these companies may have. Even Yelp, a generally unpolitical company of food and service reviews, believes that if SCOTUS permits these state laws, they will affect their company, too. Yelp argues the laws could prevent them from, for example, recommending the most helpful comments on their site (Groppe 2024). 

Nevertheless, the Court's arguments point to several essential questions as the United States considers the definition of social media and its role in the public sphere. Firstly, what is social media? The defenders of the state laws compare social media companies to telephone providers, or ‘common carriers’ of information that should not have limits on what is said or done on these sites (Howe 2024).

On the other hand, the tech companies point to the 1974 SCOTUS case of Miami Herald v. Tornillo, where the Miami Herald wrote two op-eds critical of Florida House of Representatives political candidate Pat Tornillo. Florida had a ‘right to reply’ law that allowed individuals criticized in op-eds to publicly write a response (Groppe 2024). However, the Herald refused to publish Tornillo’s responses, and Tornillo sued. The case made its way to SCOTUS. There, in a unanimous decision, the Court ruled that companies, including the press, have the right to control the speech on its platforms, which cannot be superseded by the government, as “press responsibility is not mandated by the Constitution” (id at 256-257).

But as Justice Samuel Alito pointed out in Moody, this case is different from either example. Social media is unique in that it allows a much greater degree of freedom of expression for its users and is in a more public sphere, permitting users to read and view anything so long as they have internet access (Savage 2024).

While these cases involving free speech and social media are new to SCOTUS, Moody v. NetChoice is not the first to make its way up the courts. Last year, the justices  heard the case Twitter v. Taamneh, where they ruled that Twitter was not responsible for specific terrorist attacks even if the site allowed the promotion of terrorist content on their platform. However, Justice Ketanji Brown Jackson acknowledged that the case was “narrow in important respects,” and the result was more about the facts of the case than the larger idea that a social media company is not responsible for the content on their platform (SCOTUSBlog 2023). 

Dangerous messages are shared on large social media platforms every day. The New Zealand mosque shooter, for example, live-streamed his attacks, hoping others would follow his example. Despite discrepancies and flaws with the current moderation policies of some sites, moderation is an essential feature to ensuring the safety of large social media platforms. So, it is unlikely SCOTUS will decide that social media platforms must allow all content on their sites or complete government oversight. Still, if the state laws hold, the processes of moderating content could be much longer, pricier, and more difficult. Again, since these laws were never fully implemented, it is unclear exactly what they will look like in practice.

SCOTUS will likely deliberate for at least a couple of months before coming to a decision, as it recognizes that this case will shape the rights and role of social media platforms going forward, likely changing the relationship between the government and social media, as well as the limits of content moderation policies on these platforms. But, over the next few years, the legal boundaries and limitations of social media will likely begin to form, shaping the role and influence of media companies in the public sphere. 

Bibliography

Barnes, Robert, and Cat Zakrzewski. 2022. “Supreme Court blocks Texas social media law.” The Washington Post. https://www.washingtonpost.com/politics/2022/05/31/supreme-court-texas-social-media-law/.

Farrington, Brendan. 2021. “Florida law seeks to rein in large social media companies.” AP News. https://apnews.com/article/donald-trump-florida-social-media-media-business-915f4df30ac4529134ce3e672316a09e.

Groppe, Maureen. 2024. “How a Supreme Court social media case could alter life online.” USA Today. https://www.usatoday.com/story/news/politics/2024/02/25/supreme-court-social-media-case-texas-florida/72687015007/.

Howe, Amy. 2024. “Supreme Court skeptical of Texas, Florida regulation of social media moderation.” SCOTUSblog. https://www.scotusblog.com/2024/02/supreme-court-skeptical-of-texas-florida-regulation-of-social-media-moderation/.

Johnson, Carrie. 2024. “Supreme Court justices appear skeptical of Texas and Florida social media laws.” NPR. https://www.npr.org/2024/02/26/1233506273/supreme-court-social-media-laws.

Marimow, Ann, and Cat Zakrzewski. 2023. “Supreme Court to decide landmark Texas, Florida social media cases.” The Texas Tribune. https://www.texastribune.org/2023/09/29/supreme-court-texas-social-media-law/.

Martin, Michel. 2022. “Elon Musk calls himself a free speech absolutist. What could Twitter look like under his leadership?” NPR. https://www.npr.org/2022/10/08/1127689351/elon-musk-calls-himself-a-free-speech-absolutist-what-could-twitter-look-like-un.

“"Miami Herald Publishing Company v. Tornillo."” n.d. Oyez. https://www.oyez.org/cases/1973/73-797.

Savage, Charlie. 2024. “Takeaways From the Supreme Court Arguments on Social Media Laws.” The New York Times. https://www.nytimes.com/2024/02/26/us/politics/supreme-court-social-media-takeaways.html?smid=url-share.

Staff “Governor Ron DeSantis Signs Bill to Stop the Censorship of Floridians by Big Tech.” 2024. Flgov.com. 2024. https://www.flgov.com/2021/05/24/governor-ron-desantis-signs-bill-to-stop-the-censorship-of-floridians-by-big-tech/.

“Twitter, Inc. v. Taamneh.” 2023. SCOTUSblog. https://www.scotusblog.com/case-files/cases/twitter-inc-v-taamneh/.

Vidales, Jesus. 2022. “Texas social media “censorship” law goes into effect after federal court lifts block.” The Texas Tribune. https://www.texastribune.org/2022/09/16/texas-social-media-law/.