Supreme Court set to consider conservative-backed state social media laws

The Supreme Court will soon consider the proper limits of government influence on the content moderation decisions of social media platforms like Meta and YouTube.

In two cases challenging state restrictions on removing posts and in another case prohibiting the government from asking platforms to remove or demote posts, the high court has the potential to shape the speech distribution for millions of people online.

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In response to widespread complaints from conservatives that their content was being unfairly removed or suppressed online, Florida and Texas, both Republican-controlled states, enacted laws limiting the platforms’ ability to curate posts. The Florida law requires social media companies to be transparent about their content moderation practices and use the same criteria across their platforms when deciding to take down a post or remove an account.

The Florida law also bars those companies from removing the account of any “journalistic enterprise” or political candidate in the Sunshine State. When Florida Gov. Ron DeSantis, now a GOP candidate for president, signed the bill into law, he remarked, “If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.”

The Texas law was similarly motivated but differs in its details. It bars platforms from blocking, removing, or “demonetizing” content based on the viewpoint of the user’s post. It also requires companies to publicly report information about content removal and account suspensions. It provides for Texas residents and the attorney general to sue large social media companies if they believe they were unfairly banned or censored from a platform.

Upon signing the bill into law, Gov. Greg Abbott (R-TX) said in a statement, “Social media websites have become our modern-day public square. They 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.”

Aside from the practical difficulties in defining the terms in the law, compliance costs, and the possible decrease in spending from advertisers on the platforms, the First Amendment implications for social media companies provoked challenges to both laws by trade groups NetChoice and the Computer and Communications Industry Association. After a federal appeals court struck down Florida’s law and a different appeals court upheld the Texas law, the Supreme Court agreed to settle the split this term.

Chris Marchese, director of the NetChoice Litigation Center, told the Washington Examiner, “A ruling for Florida or Texas would turn the First Amendment on its head. Far from protecting the so-called public square, it would render all online speech fair game for government control and censorship.” The cases against the state laws highlight the First Amendment rights of the social media companies to not be forced to carry speech they choose not to. Marchese went on to note that in regard to Israel’s defensive war in Gaza after terrorist attacks claimed 1,400 lives in the nation, “Under both the Texas and Florida laws, platforms would be prohibited from removing Hamas’s propaganda if they also allowed Israeli news content.”

Another social media-related case being heard by the court this term, Murthy v. Missouri, centers on efforts from officials in President Joe Biden’s administration to influence a social media platform’s content moderation decision. A lower court found that the government has likely violated the First Amendment by coercing social media companies to restrict or remove posts expressing information or disagreement with the Biden administration on COVID-19 and election information, among other matters. That court issued an injunction on the White House, Centers for Disease Control and Prevention, FBI, Office of the Surgeon General, and more against contacting social media platforms to restrict third-party posts.

The Biden administration appealed the decision to the Supreme Court, which agreed to hear the case and stayed the injunction against communication with the platforms for now.

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Commenting on Murthy, Marchese noted, “The First Amendment prohibits the government from doing indirectly what it can’t do directly. Just as state governments can’t force private speakers to host speech directly, Biden bureaucrats can’t pressure speakers into censoring speech indirectly.”

The cases will likely be heard in early 2024, with decisions expected sometime before the summer.