The Supreme Court of the United States, whose term began on October 1, has added two cases to its docket concerning social media content moderation in Texas and Florida.
NetChoice v. Paxton was initially filed in response to House Bill (HB) 20, which was passed by the Texas Legislature in 2021. HB 20 requires increased transparency from major social media platforms and prohibits them from censoring users based on viewpoint.
The Texas law, which regulates platforms with more than 50 million monthly active users, was first challenged in federal district court in 2021 and was blocked from implementation. It was then appealed to the U.S. Court of Appeals for the 5th Circuit, which froze the injunction pending an appeal, thus allowing it to go into effect. NetChoice, a technology lobbying group, then sought emergency relief from SCOTUS, which voted to put the law on hold pending further consideration.
The court will hear about a similar law in Florida in conjunction with the Texas case.
Florida passed a law in 2021 to regulate social media companies that have at least $100 million in annual revenue or at least 100 million monthly users. Specifically, the law prohibits certain types of content moderation; social media platforms must notify users if posts are removed or altered while also including a reason, and social media platforms must provide disclosure agreements on standards for publishing or de-platforming.
NetChoice and two other internet trade associations — which include Google, Meta, and X, then known as Twitter — challenged the Florida law in federal court and were successful in getting it blocked. Florida then appealed the decision to the 11th Circuit Court of Appeals, which again sided with the social media and internet companies, citing the law as unconstitutional.
The two bills now stand with split rulings, with the 5th Circuit siding with Texas and the 11th Circuit siding against Florida.
Both former President Trump and the Biden administration have urged SCOTUS to intervene in these cases, albeit for different reasons. Trump contends that the Florida law should be upheld, claiming these social media platforms are effectively a “modern public square,” while the Biden administration argues that in both Texas and Florida, social media content moderation and individualized explanations of publishing standards laws should be left to the discretion of the platforms as covered in the First Amendment.
“When a social-media platform selects, edits and arranges third-party speech for presentation to the public, it engages in activity protect by the First Amendment,” Solicitor General Elizabeth Prelogar wrote for the Biden administration, adding that “the act of culling and curating the content that users see is inherently expressive, even if the speech that is collected is almost wholly provided by users.”
Texas Attorney General Ken Paxton has argued that social media platforms “are the twenty-first century descendants of telegraph and telephone companies” and thus the government has the right of “keeping the platforms’ communications pathways open through common-carriage requirements.”
Paxton further contends that Texas’ law properly categorizes social media platforms as “common carriers,” which “does not offend the First Amendment.”
Paxton has a history of going after big tech companies, including social media platforms. He has sued Meta for allegedly “storing millions of biometric identifiers” such as retina and iris scans, fingerprints, voiceprints, and recordings of hand or face geometry, which Paxton argues is a violation of Texas’ Capture or Use of Biometric Identifier Act and the Deceptive Trade Practices Act.
He has also engaged in legal proceedings with Google, which ended in a $8 million settlement over its “deceptive advertisements.”
The battleground of free speech and expression on social media platforms will now be left to SCOTUS to determine what is and what is not proper conduct for content moderation law as understood under the First Amendment.
While it is impossible to predict just how the court will rule, Justice Clarence Thomas has been outspoken in his criticism of big tech and social media, expressing skepticism of the controlling capacity of these companies and saying “the right to cut off speech lies most powerfully in the hands of private digital platforms.”
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