The US Supreme Court is hearing oral arguments Monday in two cases that could dramatically reshape social media, weighing whether states such as Texas and Florida should have the power to control what posts platforms can remove from their services.
The high-stakes battle gives the nation’s highest court an enormous say in how millions of Americans get their news and information, as well as whether sites such as Facebook, Instagram, YouTube and TikTok should be able to make their own decisions about how to moderate spam, hate speech and election misinformation.
At issue are laws passed by the two states that prohibit online platforms from removing or demoting user content that expresses viewpoints — legislation both states say is necessary to prevent censorship of conservative users.
More than a dozen Republican attorneys general have argued to the court that social media should be treated like traditional utilities such as the landline telephone network. The tech industry, meanwhile, argues that social media companies have First Amendment rights to make editorial decisions about what to show. That makes them more akin to newspapers or cable companies, opponents of the states say.
The case could lead to a significant rethinking of First Amendment principles, according to legal experts. A ruling in favor of the states could weaken or reverse decades of precedent against “compelled speech,” which protects private individuals from government speech mandates, and have far-reaching consequences beyond social media.
A defeat for social media companies seems unlikely, but it would instantly transform their business models, according to Blair Levin, an industry analyst at the market research firm New Street Research.
“This case represents the single biggest near-term risk to the social media platforms’ business models,” Levin wrote in a research note Monday, adding that the case has the potential “to make a sudden and dramatic turn that would materially disrupt” their ability to moderate content and, in turn, their attractiveness to advertisers.
Supreme Court justices opened Monday’s oral arguments by questioning Florida Solicitor General Henry Whitaker about the broad scope of the state’s law restricting content moderation.
Justice Sonia Sotomayor said Florida’s law could prevent the online marketplace Etsy from curating items sold by its users.
“This is so, so broad, it’s covering almost everything” on the internet, Sotomayor said. “But the one thing I know about the internet is that its variety is infinite.”
Etsy necessarily has to be able to curate what it shows users or else they would be overwhelmed by the variety, Sotomayor said.
Whitaker said Florida’s law is limited by its definition of social media companies, which focuses on large platforms.
This is a developing story. It will be updated.
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