Supreme Court grapples with how to resolve free-speech challenges to GOP-backed social media laws

WASHINGTON — The Supreme Court faced knotty speech questions Monday as it weighed laws in Florida and Texas that seek to impose restrictions on social media companies' ability to moderate content.

After nearly four hours of oral arguments, a majority of justices appeared concerned that there was a free speech problem with banning sites that block or restrict access to certain problematic users.

But judges across the ideological spectrum raised fears about the power and influence of large social media platforms like YouTube and Facebook and questioned whether the laws should be blocked altogether.

Trade groups NetChoice and the Computer and Communications Industry Association, also known as CCIA, say both laws violate companies' free speech rights under the First Amendment to the Constitution.

First Amendment free speech protection applies to government actions, not by private entities, including corporations.

“Why is it that, you know, the government comes in and says, 'We're not going to let you implement those kinds of restrictions?' Liberal Justice Elena Kagan asked, citing Florida law's content-limiting provisions.

As Chief Justice John Roberts put it, because corporations are not bound by the First Amendment, “they can discriminate against certain groups they don't like.”

However, some judges have suggested that the laws may have some legitimate application against other platforms or services, including messaging apps.

The final ruling could lead to further litigation in lower courts over whether the laws should be blocked. Both are currently on hold.

“It's very difficult to separate the wheat from the chaff here,” said conservative Justice Neil Gorsuch.

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Republican-led states in 2021 were enacted by Twitter, Facebook and others after former President Donald Trump's bid to overturn the 2020 presidential election ended in a siege of the US Capitol on January 6, 2021.

That was before Twitter was acquired the following year by billionaire Elon Musk, who aligned himself with the platform's conservative critics and allowed the return of various banned users, including Trump.

Both laws seek to impose restrictions on content control and require companies to provide users with specific explanations when removing content.

The Florida law, among other things, bars companies from banning public figures running for political office and restricts “shadow banning,” whereby certain user content is difficult to find by other users. The government says such measures are a form of censorship.

Texas law similarly prohibits banning users based on comments they express on the sites. Every law requires companies to publish their moderation policies.

States are trying to equate social media companies with the telecommunications industry, which transmits speech but lacks editorial input. These “common carriers” are heavily regulated by the government and do not involve free speech issues.

As the argument unfolded, it became clear that the justices were concerned that the laws would apply beyond traditional social media companies to companies like Uber and Etsy, which allow some user-generated content.

Similarly, some social media companies including Facebook also allow direct messaging. One of the largest technology companies, YouTube owner Google, operates the Gmail email service.

The application of laws against direct messaging or email services does not raise the same free speech concerns, and judges have been reluctant to block the laws outright.

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“It makes me a little nervous,” said conservative Justice Amy Coney Barrett.

The cases have a political edge, with President Joe Biden's administration filing a brief Supports legal challenges and former President Donald Trump Supports laws.

In May 2022, the Supreme Court blocked the implementation of the Texas law after the New Orleans-based 5th U.S. Circuit Court of Appeals refused to stay the Texas law. At that time, four of the nine judges said the court should not have intervened at that stage.

The Florida move was blocked by the Atlanta-based 11th US Circuit Court of Appeals, prompting the state to appeal to the Supreme Court.

Challenges to the Texas and Florida laws The Supreme Court is currently grappling with several legal questions related to social media.

A legal question not at issue in the case, but lurking in the background, is the legal immunity Internet companies have long enjoyed for content posted by their users. Last year, the court ignored the verdict in the case.

Conservative Justice Samuel Alito sympathized with states' efforts to regulate the companies, suggesting that social media companies are now guilty of hypocrisy in adopting the free speech argument. They want.

He explained the companies' arguments thus.

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