Live updates: Supreme Court considers the future of social media

The Supreme Court will hear oral arguments Monday in a pair of cases that could transform how social networks have operated for decades — with sweeping consequences for a host of federal and state efforts to regulate the internet.

The court is reviewing laws passed in Florida and Texas intended to address allegations that social media companies censor conservative viewpoints by imposing strict limits on whether firms can block or take down content on their platforms.

Tech companies argue that the First Amendment protects their right to decide what posts and accounts they carry on their websites, while the states allege that the companies have grown so powerful that it is imperative to ensure they do not discriminate against users or viewpoints they disagree with.

Here’s what to know

• The Supreme Court is likely to decide the cases by June, in the critical months ahead of the presidential election. In a sign of the case’s political stakes, former president Donald Trump submitted a brief defending the Florida law.
• First Amendment experts warn that either argument could lead to outcomes that would be deleterious for democracy. If the court rules in favor of the tech companies, the industry could argue that the First Amendment precludes a broad array of proposed regulation. If the states win, governments across the country may push ahead with rules that give states unprecedented influence over political discourse online.
• This is just one of several high-profile tech cases on the Supreme Court’s docket, as the court increasingly weighs how centuries of free speech precedent applies to the digital sphere. Next month, the high court will hear arguments in a case that weighs whether the First Amendment precludes government officials from pressuring tech companies to remove content.

9:30 AM: Is content moderation a form of ‘editorial discretion?’

Live updates: Supreme Court considers the future of social media

In 1974, the Supreme Court struck down a Florida law requiring newspapers to give political candidates a “right to reply” when the newspaper criticized them.

The decision of what to publish about public officials, the court ruled in Miami Herald v. Tornillo, was a form of “editorial control and judgment” that the government had no business regulating.

Whether social media platforms such as Facebook and YouTube are entitled to such “editorial discretion,” and thus First Amendment protection, has become a central legal question in the cases.

The principle should apply to social media companies’ decisions about how they curate, present and sometimes remove posts, argued Kate Ruane, director of the Free Expression Project at the nonprofit Center for Democracy and Technology, in a panel discussion Thursday.

“Platforms’ content moderation processes are editorial processes protected by the First Amendment,” she said, “in much the same way that newspapers or book publishers are protected.”

Texas and Florida will counter that social media platforms are fundamentally different from newspapers or book publishers, serving as intermediaries for speech rather than as part of the press whose freedom the First Amendment guarantees. To support that argument, they may point to Section 230 of the Communications Decency Act — a valued liability shield for the tech industry — which says that websites shouldn’t be treated as the publishers or speakers of third-party content they host.

By: Will Oremus

9:20 AM: How Justice Clarence Thomas popularized a major Big Tech critique

Supreme Court Justice Clarence Thomas, with wife Virginia “Ginni” Thomas and Justice Samuel A. Alito Jr., attends the December funeral for retired Supreme Court Justice Sandra Day O’Connor at Washington National Cathedral.

Monday’s oral arguments will mark the first time the Supreme Court reviews state laws declaring that major social media companies are “common carriers,” a designation conservatives argue should bar platforms from discriminating against users based on their political views.

But the legal argument already has a key ally on the bench: Justice Clarence Thomas.

Thomas helped popularize the idea, once a fringe legal theory, in a widely cited 2021 opinion in which he argued that “some digital platforms are sufficiently akin to common carriers … to be regulated in this manner.”

Brendan Carr, a Republican on the Federal Communications Commission, told The Technology 202 newsletter that Thomas’s opinion marked a “watershed moment” for many conservatives.

Read more here and subscribe to The Technology 202.

By: Cristiano Lima-Strong

9:01 AM: Supreme Court could upend Silicon Valley’s 2024 gameplan

Meta CEO Mark Zuckerberg during a Senate Judiciary Committee hearing.

A Supreme Court decision upholding the Florida and Texas social media laws could dramatically reshape how tech companies police political content leading up to the 2024 elections, likely upending their efforts to crack down on misinformation and hate speech.

If allowed to stand, the Florida law would prohibit companies from booting off politicians, and the Texas law would bar them from restricting users’ posts based on their viewpoints.

Tech companies have faced mounting pressure to beef up their rules against election misinformation since the 2016 campaign, when Russia used social media platforms to spread lies and stoke divisions in the United States. Those policies came under new scrutiny in 2020, when former president Donald Trump used the sites to falsely suggest that the election was rigged.

But many of those rules could prove unenforceable if the Texas and Florida laws are upheld, including those many platforms cited to suspend Trump after the Jan. 6 insurrection.

Consumer advocacy group Public Knowledge argued in a legal brief to the court that both laws “would have deleterious effects on the functionality and usefulness of social media platforms, including requiring or incentivizing them to publish pro-terrorist content, hate speech, spam … lies about the time and place of elections, and fraud.”

Sen. Ben Ray Luján (D-N.M.) argued that such a change would prove particularly damaging to marginalized groups, such as racial and ethnic minorities. “Without the ability to protect their users from misinformation, harassment, and hate, platforms risk losing their places as safe havens for those in marginalized communities,” he wrote.

By: Cristiano Lima-Strong

9:00 AM: Why Texas and Florida say social media sites are ‘common carriers’

Content moderators work at a Facebook office in Austin on March 5, 2019. (Ilana Panich-Linsman for The Washington Post)

While tech industry groups say social media platforms are like newspapers or book publishers, whose editorial decisions deserve First Amendment protection, Florida and Texas have argued that they should be regulated as “common carriers.”

That phrase, which will probably be a feature of today’s oral arguments, is a designation applied to communications utilities — such as telephone companies and internet service providers — whose primary role is to facilitate the speech of others, rather than to express or disseminate views of their own. Courts have held that the government has a legitimate interest in making sure such tools are available on equal terms to all, without discrimination.

In this view, social media companies’ content moderation policies are not protected speech. Instead, the companies are limiting the protected speech of their users — a form of “censorship,” the states argue.

Ari Cohn, free speech counsel at Tech Freedom, argued in a panel discussion Thursday that social media companies are far from common carriers, because their terms of service and approaches to content moderation are a big part of what differentiate them in the marketplace. He pointed to the differences in how platforms such as Instagram, X and Substack curate, present and moderate content.

The two circuit courts that heard these respective cases split on the question of whether social media firms could be treated as common carriers, making that one of the key questions the Supreme Court is poised to consider today.

By: Will Oremus

8:59 AM: What’s at stake? The destiny of online speech.

The dome of the U.S. Capitol building is seen from the United States Supreme Court on August, 31. (Kent Nishimura for The Washington Post)

The Supreme Court is weighing whether the Florida and Texas social media laws are constitutional, but its decision could create a First Amendment precedent that would shape the direction of the internet.

“It’s difficult to think of any other recent First Amendment case in which the stakes were so high,” said Jameel Jaffer, executive director of the Knight First Amendment Institute, in a news release.

Tech companies, represented by the trade group NetChoice, argue that the laws give the government too much control over online speech, violating the First Amendment and ushering in a patchwork of different internet laws rooted in political whims of state leaders.

This “splinternet” is starting to emerge in the United States, as regulations governing the internet diverge along political and state lines. In the absence of federal mandates, red states are pushing forward with laws that could make it harder for companies to remove content from their services, while blue states, including California and New York, have passed transparency measures encouraging companies to remove violent and other harmful posts.

To combat the laws, the tech industry increasingly uses the First Amendment as a shield, and legal experts warn that an overly broad ruling in favor of the companies could establish a constitutional right to bat back regulation. But an extreme ruling in favor of the states could set the stage for broad government censorship at odds with decades of legal precedent.

Read more here

By: Cat Zakrzewski