Supreme Court grapples with free speech concerns involving social media

Feb. 26 (UPI) -- Supreme Court justices on Monday heard arguments in a pair of potentially landmark cases relating to the freedom of social media companies such as Facebook and X to regulate speech on their platforms.

In both NetChoice vs. Paxton and Moody vs. NetChoice, technology companies are seeking to scale back state laws passed three years ago by Republican-controlled Legislatures in Texas and Florida in the wake of complaints that social media companies were censoring users, especially those with conservative views.

Both laws have provisions constraining the choices that social media platforms can make about which user-generated content can be displayed to the public, as well as sections requiring them to provide individualized explanations to users about their editorial decisions.

Texas Solicitor General Aaron Nielson and Florida counterpart Henry Whitaker each appeared before the court during the four-hour session to explain why their laws do not infringe on the First Amendment rights of giant technology companies to moderate their privately owned platforms as they see fit.

Rather, they claimed, the measures merely seek to modify the companies' behavior and address what critics see as an inconsistent pattern of censorship enforcement targeting conservative social and political voices.

Meanwhile, Paul Clement, an attorney for the tech company trade group NetChoice, laid out his case by saying the laws do, indeed, affect the free speech rights of the platform owners and that it is not the government's place to compel them to publish content that violates their editorial policies.

"Just as Florida may not tell the [New York Times] what opinion pieces to publish or Fox News what interviews to air, it may not tell Facebook or YouTube what content to disseminate," the companies argue in their filings.

Also appearing before the Supreme Court on Monday was U.S. Solicitor General Elizabeth Prelogar, who added the Biden administration's voice to those of the tech companies in arguing against the Florida law.

The high court is expected to issue its decision in the cases in June.

Analysts have described the cases as possibly having wide-ranging effects not only on how Americans use the Internet but also for nonprofits and traditional media companies with presences online.

In essence, the justices are being asked to define the very nature of social media platforms -- are they more like newspapers, free to exercise editorial judgment, or more akin to shopping malls, which serve as "modern town squares," or gathering places for the public and which can be compelled to host demonstrations by those whose views with which they may privately disagree.

Both laws are on hold after tech companies filed their legal challenges.

During Monday's questioning, justices appeared skeptical of the states' claims that their laws have no First Amendment implications.

Conservative justice Brett Kavanaugh, for instance, disagreed with fellow conservative Samuel Alito's contention that the censorship powers of the tech companies are "Orwellian," stating, "We don't want the state interfering" with the private entities even if they're powerful.

Another conservative justice, Amy Coney Barrett, wondered if Florida could also pass a law requiring a bookstore not to favor certain books in its display.

"Don't all methods of organization represent some kind of judgment?" she asked.

The justices also seemed confused at times over the distinctions between editorial and non-editorial online content, and how laws regarding one type of Internet content might inadvertently affect others.

At the conclusion of the hearing, it seemed likely the laws would remain blocked and the cases returned to the lower courts, the Washington Post reported.