A new front in America’s culture wars will reach the Supreme Court on Monday as the justices hear two cases stemming from controversial laws in Texas and Florida regulating social media bans.
The laws aim to block social media companies from banning users based on their political views — even if users violate platform policies. If allowed to stand, they could weaken companies’ ability to enforce their own rules and transform free speech online.
“These cases are potentially of enormous, enormous scope,” said Scott Wilkens, senior counsel at the Knight First Amendment Institute. “This will be the first time that the Supreme Court really weighs in on the First Amendment rights of social media platforms, and therefore, the shape and contours of free speech online.”
The two laws were passed in 2021, as part of a growing Republican backlash over how social media companies enforced their policies that led to bans and suspensions on conservative figures for posting content that violated the platforms’ policies.
The outrage escalated when mainstream platforms, including Twitter, now X; and Meta, the parent company of Facebook and Instagram; blocked the account of former President Trump after comments he made about the riot at the Capital on Jan. 6, 2021.
Under new ownership by Elon Musk, Twitter gave Trump access back to his account in November 2022. Meta lifted its ban on Trump last January.
Tech industry groups NetChoice and the Computer and Communications Industry Association (CCIA) challenged the legislation as a violation of private companies’ First Amendment rights. The groups argued that governments should not be allowed to dictate how private companies weigh which speech to host.
“Online services have a well-established First Amendment right to host, curate and share content as they see fit,” NetChoice litigation director Chris Marchese said in a statement after the high court took up the case. “The internet is a vital platform for free expression, and it must remain free from government censorship.”
Both sides in the case have taken “diametrically opposed views” of social media platforms’ First Amendment rights, Wilkens said. Lower courts reached conflicting opinions on the laws, heightening the need for Supreme Court review.
A panel of U.S. Court of Appeals for the 11th Circuit judges sided with the tech groups, upholding a block on major provisions of the Florida law and citing the “basic principles of freedom of speech and the press” as their reason.
But the U.S. Court of Appeals for the 5th Circuit reached the opposite conclusion on the Texas law, writing in its opinion that the First Amendment doesn’t give corporations an “unenumerated right to muzzle speech.”
In August, the Biden administration signaled support for the tech groups when Solicitor General Elizabeth Preloger asked the Supreme Court to overturn the 5th Circuit’s decision to uphold the Texas law.
A broad coalition of tech companies and advocacy groups, even those that are often on opposing battle lines from the powerful tech industry groups for policy debates, have backed NetChoice and CCIA in the case. The coalition of tech advocacy groups and companies argue if the Supreme Court were to allow the laws to go forward it would have a disproportionate impact on small and midsized tech platforms.
Allowing for content moderation differences is part of what helps set smaller companies apart and stay competitive in the marketplace, said Laura Biseto, deputy general counsel at NextDoor. She is also chair of the board of directors of Internet Works, a group that names NextDoor, Etsy, Pinterest, Discord and Reddit among its members.
“The laws are not just about the largest four to five companies. It has much broader impacts on all the companies in our organization. And editorial discretion is precisely what makes our companies unique. All the companies have a niche in the market,” she said.
A key point that may emerge in the discussions Monday is whether social media companies should be considered common carriers.
Ari Cohn, free speech counsel at the nonprofit technology think tank TechFreedom, said social media companies “simply are not common carriers,” because it is a “diverse, differentiated market where content moderation effectively is the product.”
“The platforms differentiate themselves based on what content they allow, how they moderate even, what their rules are. And that inherently means A, they are making editorial judgments, they are curating an experience for their users. And B, that they are just not simple transmitters of indiscriminate pieces of information from point A to point B,” Cohn said.
The Supreme Court, and other government institutions, have often been criticized for having a limited understanding of social media. Justice Elena Kagan joked during a case involving Google last term that the high court is not composed of the “nine greatest experts on the internet.”
Wilkens said the other justices likely share that view and will carefully probe both sides for a way to decide the case narrowly, not on the political controversies.
“This kind of case could have huge implications for free speech online for decades, and the justices will…be aware of that,” Wilkens said. “They will be trying to find a way to reach a decision that that can stand the test of time and that doesn’t unduly inhibit technology going forward.
“I don’t know if they’ll be able to do that,” he added.