U.S. Supreme Court Hears Florida and Texas Social Media Cases

On February 26, 2024, the Supreme Court heard oral arguments regarding the constitutionality of laws originating in Florida (Moody v. NetChoice, LLC, Docket No. 22-277) and Texas (NetChoice, LLC v. Paxton, Docket No. 22-555) that govern social media platforms.

The Texas law (HB 20) prohibits social media companies from removing content based on its author’s viewpoint. The law applies only to social media companies “that functionally ha[ve] more than 50 million active users in the United States in a calendar month.” The Florida law (SB 7072) applies to social media companies that have annual gross revenues in excess of $100 million, or that have at least 100 million monthly individual platform participants globally. The law bars platforms from removing politicians from their sites and from limiting the exposure of those candidates’ posts. Two trade groups representing social media platforms including Google, YouTube, X (formerly known as Twitter), and Meta (which owns Facebook) challenged the laws in federal court.

Enforcement Barred

A federal district judge in Florida barred the state from enforcing most of its law and the U.S. Court of Appeals for the 11th Circuit upheld the ruling, prompting Florida to appeal to the Supreme Court in 2022. A federal judge in Austin blocked the implementation of Texas’s law, but the U.S. Court of Appeals for the 5th Circuit reversed, saying that the law could take effect. The tech groups appealed to the Supreme Court which agreed last fall to review both states’ laws.

Arguments Before the Supreme Court.

The tech groups argued that the First Amendment protects the right of private social media platforms to decide what messages they will or will not disseminate. They asserted that the range of voices on social platforms engaged “in everything from incitement and obscenity to political discourse and friendly banter” requires that billions of editorial decisions be made every day. These decisions involve judgments about what content to remove (such as “hate speech” and pornography) and about how the content that remains will appear on their sites for individual users. According to the tech groups, the states’ laws should be reviewed under the most stringent standard, known as strict scrutiny, because they interfere with the platforms’ speech by interfering with their right to exercise editorial discretion. The tech groups contended that the laws fail the strict scrutiny test because, even if states have an interest in protecting their residents’ access to information, it does not justify requiring private social media platforms to publish content with which they disagree.

Florida and Texas countered by arguing that the platforms are essentially “common carriers,” like telephone companies, and, as such, are not permitted to discriminate in providing services. The states took the position that the business model of the platforms is to have users post their speech on the platforms, which differs from creating new content and publishing it. According to the states, the laws in question do not implicate the First Amendment because the activity in which social media platforms engage is not speech itself but rather “hosting” speech, which is an activity that can be regulated to protect the public. Further, the states contended that even if the Court did find that the laws do regulate speech, they are not subject to the strict scrutiny standard because they do not target specific content on any platform, but merely ensure that speakers have access to the “modern public square.”

How Will the Court Rule?

It is unclear how the Court will rule on this question. Beyond the immediate impact that the outcome of the case will have on the particular Texas and Florida laws at issue, the Court’s decision is likely to address the underlying issue of whether states are empowered to regulate online platforms, from large commercial social media sites to individual website moderators, and if they may regulate the platforms, how far that regulation may go.

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