The Supreme Court put Texas and Florida social media laws on hold

Social Media Laws in Florida and Texas: High Court Benchmarks to HB20, and How to Reinvent the Rules of Road for Online Free Speech

The majority seemed particularly critical of the Fifth Circuit’s evaluation in favor of Texas’ social media law, HB20, which seeks to protect online speech from discrimination on the basis of viewpoint. “Contrary to what the Fifth Circuit thought, the current record indicates that the Texas law does regulate speech when applied in the way the parties focused on below — when applied, that is, to prevent Facebook (or YouTube) from using its content-moderation standards to remove, alter, organize, prioritize, or disclaim posts in its News Feed (or homepage),” Kagan wrote for the majority. “The law then prevents exactly the kind of editorial judgments this Court has previously held to receive First Amendment protection.” Kagan added that the law “is unlikely to withstand First Amendment scrutiny” in that specific application.

Two laws in Florida and Texas that were related to NetChoice aimed to limit how large social media companies could moderate content on their sites. The legislation took shape after conservative politicians in both states criticized major tech companies for allegedly exerting bias against conservative viewpoints. Tech industry groups NetChoice and the Computer & Communications Industry Association sued to block both laws. The Supreme Court will make the final call on whether the statutes are upheld after the appeals courts in each state have made different conclusions.

None of the justices dissented, but there were several concurring opinions. The majority opinion was written by Justice Elena Kagan and was joined by Chief Justice John Roberts. Justice Ketanji Brown Jackson joined part of the majority opinion. Samuel Alito and Clarence Thomas wrote concurring opinions, as did Neil Gorsuch and Thomas.

The justices heard arguments in two cases in February. The justices inquired about the impact the laws had on tech companies that didn’t seem to be high on the agenda when they were written.

In doing so, the justices provoked five separate opinions, as they decided to return the Texas and Florida cases for analysis.

The parties have not briefed critical issues, and the record is underdeveloped, according to a letter written by Justice Elena Kagan.

A case before the high court had the potential to rewrite the rules of road for online free speech.

Tech companies are not the losers of social media: How social media became a public utility in the wake of the January 6 Jan. 6 riot

It all started when former President Trump was kicked off of Twitter, Facebook, Instagram and other social media platforms in the wake of the Jan. 6 riot at the Capitol.

In response, lawmakers in Florida and Texas passed state laws barring social media sites from banning or restricting the reach of political candidates, claiming that conservative voices have been censored by tech companies.

The laws came despite evidence that, often times, the opposite is true, as right-wing commentators have become especially skilled at using social media as a megaphone.

During oral arguments in the case in February, the justices grappled with whether Twitter, now X, and Meta, have created what amounts to a modern-day public square that distinguishes them from other private companies.

Another point of discussion centers on whether social media companies should be considered “common carriers,” like a public utility, such as a telephone company, and therefore should be regulated similarly. For instance, a phone company cannot stop a person from making a call.

And the question before the court was whether the state laws preventing the platforms from doing something like banning Trump again would represent a violation of the First Amendment.

Silicon Valley has argued that without that discretion, including the ability to suspend or block users, social media sites would be glutted with spam, hate speech and other unsavory content.

Under Section 230 of the Communications Decency Act, technology companies are shielded from lawsuits that could arise from content hosted by platforms. Tech companies have wide latitude in patrolling speech on their sites.

Section 230 is now a punching bag. Conservatives argue that big social media firms are not held responsible for the rise of hate speech because of the law that gives platforms a free pass to censor right-wing perspectives.