(Washington) The American Supreme Court with a conservative majority grappled Monday with laws from Texas and Florida, two southern states led by Republicans, prohibiting social networks from regulating online content as they wish.
This is the most important case on the agenda of this session of the Court in terms of freedom of expression. Texas and Florida justify their respective legislation adopted in 2021 by the need to curb “censorship” of conservative opinions on social networks, which have become “the agora of modern times”.
These laws were passed in response to the exclusion of outgoing Republican President Donald Trump from major platforms, including Facebook and Twitter, following the storming of the Capitol by hundreds of his supporters on January 6, 2021.
The landscape has evolved significantly since then, in particular with the return in August 2023 of Donald Trump to Twitter, which became X after its acquisition by billionaire Elon Musk, a supporter of a relaxation of the rules of use, particularly in terms of disinformation.
First Amendment
The NetChoice association, representing internet companies, and the lobby of tech giants, the CCIA (Computer & Communications Industry Association), challenged the legislation of the two states in court, notably on the grounds that content moderation fell under the First Amendment of the Constitution, guaranteeing freedom of expression.
Texas law prohibits social networks with more than 50 million active monthly users from blocking, deleting or “demonetizing” content based on the ideas professed by the user. In Florida, it prohibits any intervention by major social networks on the publications of political candidates or “journalistic companies”.
Laws in both states require them to provide an “individualized explanation” to the user when they remove one of their posts.
Federal courts have rendered contradictory decisions, considering in Florida that moderation activities did indeed constitute “expression,” but reaching the opposite conclusion in Texas.
The Supreme Court suspended the entry into force of these laws, while it ruled on two points: determining whether content moderation is protected by the First Amendment and the validity of the request for individualized explanations.
“The First Amendment applies not to social networks, but to what the authorities can do,” objected the president of the Court, the conservative John Roberts, to the legal adviser of Texas, Aaron Nielson.
“What the authorities are doing here is saying you have to do this, you have to accept these people or explain why you don’t do it, that’s not the First Amendment,” the president continued.
“Laws like these, which are so broad that they immediately stifle expression, pose a problem to me,” said progressive judge Sonia Sotomayor.
“Simple pipes”
Texas and Florida are trying to “require private entities to give more voice to some voices than others and to give some people more of an audience than they get in the marketplace.” ideas,” argued Netchoice’s lawyer, Paul Clement, accusing them of interfering in the “editorial line” of social networks.
Florida State Counsel Henry Whitaker described social media as “mere tips,” denying online moderation any editorial character.
Over the course of four hours of debate, most of the justices, regardless of political leaning, appeared sympathetic to arguments that the First Amendment protected online moderation, but more reluctant to entirely strike down laws whose scope remains uncertain, as they have not entered into force.
The legal adviser to the administration of Democratic President Joe Biden, Elizabeth Prelogar, suggested that they rule without ruling on all the questions raised, by confirming the suspension of the laws and referring the interpretation to the courts of the two states concerned .
The Court’s decision is not expected for several months.