Is restricting content moderation constitutional? The US Supreme Court prepares to hear landmark social media cases
Monday’s Supreme Court showdown in NetChoice v. Paxton and Moody v. NetChoice will determine whether states can forbid social media companies from blocking or removing user content that goes against platform rules. The state laws at issue also allow individuals to sue tech companies for alleged violations.
The Florida and Texas laws are loosely written, but officials from both states say the laws will keep social media sites from unfairly muting conservatives and others. Social media platforms have insisted for years that they don’t discriminate against right-wing speech.
Signed in 2021 by Gov. Ron DeSantis, Florida’s SB 7072 prohibits tech platforms from suspending or banning the accounts of political candidates in the state, with violations carrying steep possible fines of up to $250,000 per day. It also allows individual social media users to sue platforms if they believe they have been unfairly censored or “deplatformed.”
The Texas law, signed in 2021 by Gov. Greg Abbott, makes it illegal for any large social media platform to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” Like the Florida law, Texas’ HB 20 permits individual internet users to sue social media platforms for alleged violations.
Social media platforms are now so important as a new public square, the states say, that we need new laws to make them follow free speech ideals, even though the First Amendment applies to governments and not private businesses.
Should social media platforms decide for themselves what content goes on their sites and what can be removed?
The states want to keep social media platforms and others from removing users’ posts potentially even ones that promote hate speech or eating disorders, lie to voters about elections and more. A ruling for the states could alter how Americans hear about the upcoming 2024 elections everywhere from Instagram to X and beyond.
Texas and Florida officials believe that their laws imposing restrictions on content moderation are constitutional because they seek to regulate social media platforms’ business behavior, not their speech. But opponents including NetChoice, an industry group suing to block both laws, say they infringe on the platforms’ own First Amendment rights and that their breadth could lead to vast unintended consequences.
For example, a group of political scientists told the court the laws effectively require platforms to treat “dangerous and violent election-related speech” the same as innocuous speech and don’t give social media platforms enough freedom to moderate threats against election officials.
A ruling for Texas and Florida could reshape a longstanding precedent barring governments from “compelling speech” — that is, forcing private individuals to say something against their will. For example, a 1974 case determined that a Florida law requiring newspapers to publish a political candidate’s speech violated the First Amendment.
Making social media companies publish all speech, even if the platforms would rather remove it, would be a form of compelled speech and a dramatic and ominous shift in First Amendment law, critics of the Texas and Florida laws say. It could lead to precisely the sort of government interference the First Amendment was meant to guard against, according to the Reporters Committee for Freedom of the Press.
“The larger the platform the state seeks to control, the greater will be the state’s influence on public and political discourse,” the group wrote in a brief.
The Florida and Texas laws are loosely written, but officials from both states say the laws will keep social media sites from unfairly muting conservatives and others. Social media platforms have insisted for years that they don’t discriminate against right-wing speech.
Signed in 2021 by Gov. Ron DeSantis, Florida’s SB 7072 prohibits tech platforms from suspending or banning the accounts of political candidates in the state, with violations carrying steep possible fines of up to $250,000 per day. It also allows individual social media users to sue platforms if they believe they have been unfairly censored or “deplatformed.”
The Texas law, signed in 2021 by Gov. Greg Abbott, makes it illegal for any large social media platform to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” Like the Florida law, Texas’ HB 20 permits individual internet users to sue social media platforms for alleged violations.
Social media platforms are now so important as a new public square, the states say, that we need new laws to make them follow free speech ideals, even though the First Amendment applies to governments and not private businesses.
Should social media platforms decide for themselves what content goes on their sites and what can be removed?
The states want to keep social media platforms and others from removing users’ posts potentially even ones that promote hate speech or eating disorders, lie to voters about elections and more. A ruling for the states could alter how Americans hear about the upcoming 2024 elections everywhere from Instagram to X and beyond.
Texas and Florida officials believe that their laws imposing restrictions on content moderation are constitutional because they seek to regulate social media platforms’ business behavior, not their speech. But opponents including NetChoice, an industry group suing to block both laws, say they infringe on the platforms’ own First Amendment rights and that their breadth could lead to vast unintended consequences.
For example, a group of political scientists told the court the laws effectively require platforms to treat “dangerous and violent election-related speech” the same as innocuous speech and don’t give social media platforms enough freedom to moderate threats against election officials.
A ruling for Texas and Florida could reshape a longstanding precedent barring governments from “compelling speech” — that is, forcing private individuals to say something against their will. For example, a 1974 case determined that a Florida law requiring newspapers to publish a political candidate’s speech violated the First Amendment.
Making social media companies publish all speech, even if the platforms would rather remove it, would be a form of compelled speech and a dramatic and ominous shift in First Amendment law, critics of the Texas and Florida laws say. It could lead to precisely the sort of government interference the First Amendment was meant to guard against, according to the Reporters Committee for Freedom of the Press.
“The larger the platform the state seeks to control, the greater will be the state’s influence on public and political discourse,” the group wrote in a brief.
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