US Supreme Court debates sore points in state laws on social media

Justices hear arguments over Florida and Texas laws on content moderation by Facebook, TikTok and other platforms

People walk out of the US Supreme Court in Washington after the end of oral arguments in a pair of lawsuits challenging laws passed in Texas and Florida that barred social media sites from curating political posts. AFPShow less

The US Supreme Court wrestled on Monday with state laws that could affect how Facebook, TikTok, X, YouTube and other social media platforms regulate content posted by 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, 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 “landmines” 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.

The centrepiece of the Texas law is a sweeping provision that stops large platforms from discriminating based on viewpoint.

The prohibition contains a handful of exceptions, including content that incites violence or criminal activity, or involves the sexual exploitation of children or the harassment of sexual abuse survivors.

The Florida law includes a dozen major provisions, including a requirement that platforms provide a “thorough rationale” for each content moderation decision.

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Justices Samuel Alito and Clarence Thomas appeared ready to embrace arguments made by lawyers for the states, with Mr Alito complaining about the term “content moderation” that the sites use to keep material off their platforms.

“Is it anything more than a euphemism for censorship?” he asked.

But Justice Brett Kavanaugh, seemingly more favourable to the companies, took issue with applying the term “censorship” to action taken by private companies, rather than the government.

“When I think of Orwellian, I think of the state, not private individuals,” Mr Kavanaugh said.

But Chief Justice John Roberts suggested that was the wrong way to think about the First Amendment of the US Constitution, which applies to the government but not to private parties.

“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,” Mr Roberts said.

The Atlanta-based 11th US Circuit Court of Appeals temporarily blocked most of Florida’s law as probably violating the First Amendment.

Next month, the top 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. Getty Images / AFP

The New Orleans-based Fifth Circuit upheld the Texas law, though the measure is also on hold for now.

Next month, the top 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.

Trade associations representing the companies sued in federal court, claiming that the laws breached the platforms’ speech rights.

One federal appeal struck down Florida’s statute, while another upheld the Texas law.

President Joe Biden's administration is siding with the challengers.

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 government's ability to regulate social media companies to some extent.