- SCOTUS is hearing arguments that, depending on the outcome, could change how the internet works.
- The laws in question prevent social sites from removing political posts or figures from their platforms.
- Legal experts told BI the states’ victory, while unlikely, would erode the First Amendment.
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The Supreme Court of the United States has had its hands full this session, hearing important arguments about redistricting and gerrymandering in South Carolina, whether domestic-violence-related restrictions on the ownership of firearms are a violation of the Second Amendment, and deciding that former President Donald Trump is eligible to be on the ballot again this year.
But a pair of laws being quietly considered by the highest court in the land could — depending on how SCOTUS rules — change the way the internet works forever, legal experts told Business Insider.
The two laws in question
The laws in question — one out of Texas (NetChoice, LLC v. Paxton) and another from Florida (Moody v. NetChoice) — are aimed at preventing social sites from removing political posts or figures from their platforms, with the conservative leaders of each state arguing platforms like Facebook and X have unfairly targeted and removed posts made by Republican users.
The Florida law, backed by GOP Gov. Ron DeSantis, created fines of $250,000 against social companies that barred candidates for statewide office from their platforms and $25,000 for removing candidates for local office. It also created mechanisms for average users to sue social media companies if they believed the companies were unfairly applying their content moderation rules based on political leanings.
The Texas law prohibits social companies from moderating users’ posts based on viewpoint, with a caveat allowing the platforms to restrict illegal content. It also requires the companies to disclose how they moderate and promote content on their sites and maintain a complaint-and-appeal system for users.
While it’s reasonable to question whether social media platforms have uniformly applied their content moderation policies concerning political viewpoints, as well as debate if there’s more that social companies can do to promote constructive discourse online, legal experts told BI the function of these laws does more harm than good.
The stakes of a government win
Two legal experts told BI that a victory for the states in these cases would be a massive blow to the First Amendment because the amendment grants the privilege of free speech to companies and individuals and prevents the government from forcing them to speak — or not speak — in a certain way. Should the laws take effect, the government would be allowed to infringe on the social media companies’ right to free speech by compelling platforms to host certain content.
“If the states win, then I expect that we are going to very quickly have a very different sort of internet experience,” Justin (Gus) Hurwitz, academic director of the University of Pennsylvania’s Center for Technology, Innovation & Competition, told BI.
Hurwitz said companies will likely do two things immediately: “The first is they will, at least on a temporary basis, stop hosting content, comments, user-generated speech, discussion forums, and things like that.”
Picture an empty timeline or your social media feed filled only with posts from companies paying to advertise on the platform. If these laws are permitted to stand, that’s what the social media landscape could look like, at least until the sites update their business practices.
And it might not stop at social media companies, Hurtwitz noted, due to the broad language in the laws. Sites all over the internet could be required to host all kinds of unpleasant user-generated content or products on platforms like Etsy, or reviews on Uber, so long as the government can prevent the companies from removing the content.
The second action social companies would likely take, Hurwitz said, would involve identifying new ways to operate in an environment where the government could compel them to host certain types of speech — which could mean blocking features like forums from being accessed in states like Florida or Texas.
A publisher or common carrier?
Lawyers defending the Florida law have argued to the Supreme Court that the lower courts wrongly ruled that user-generated speech hosted on social media platforms constitutes protected speech from the company itself.
“The Eleventh Circuit erroneously concluded that Florida could not regulate social-media platforms as common carriers, and in doing so, require the platforms to openly accept users,” Ars Technica reported Florida argued.
Florida’s argument broaches a broader question raised by the two laws, Hurwitz noted: whether social media companies should be treated as publishers, like a newspaper which has editorial discretion, or common carriers like phone companies, which offer connectivity to everyone regardless of what they’re saying to the person on the other line.
Common carriers must provide service to all customers and host all legal content, while publishers are granted leeway under the First Amendment to pick and choose who they serve and the content they amplify. If large social media companies are determined to be common carriers, each platform’s right to curate, amplify, or remove content on their site as they see fit vanishes.
“And what is social media? You can see how it has characteristics of both,” Hurwitz said, “But they’re not newspapers. They’re not phone companies. They’re not shopping malls or telegraphs. They’re not radio or broadcast TV or cable television. They’re something different. So that’s the dichotomy: Are they more like newspapers or common carriers? The answer might just be, no, that they’re something different altogether, and there’s got to be some other way that the Court tells us we need to think about the First Amendment issues in these cases.”
Jared Carter, a professor at Vermont Law and Graduate School and attorney with the Cornell Law School First Amendment Clinic, told BI he thinks it’s unlikely that the court will need to classify social media companies as a new, third category to both protect the First Amendment principles as well as the rights of private companies to do business as they see fit.
“There is a history of courts struggling with how to apply these doctrines that have existed for a long time to new and emerging technology. And I think there’s often a lot of hand-wringing: Does it work? Does it fit perfectly to this new technology?” Carter said. “If you really sit down and think about it, it’s not actually all that complicated — you can’t force a private individual or a private company to speak to the world in a way it doesn’t want to speak based on viewpoint.”
What SCOTUS is thinking
The Supreme Court heard nearly four hours of arguments on these cases on February 26, with the conservative-majority justices raising concerns about the government compelling social media companies to host certain content and the broad scope of both laws and their potential enforcement mechanisms.
“The First Amendment restricts what the government can do,” CNN reported Chief Justice John Roberts said. “What the government’s doing here is saying, ‘you must do this, you must carry these people — you’ve got to explain if you don’t.’ That’s not the First Amendment.”
Justice Samuel Alito, however, observed that the companies in question are very different from the technologies around which previous First Amendment cases have been decided. CNN noted he worried about the court resisting “the Orwellian temptation to recategorize offensive conduct in seemingly bland terms.”
Ultimately, Hurwitz noted, five or six justices appeared poised to declare that the laws violate First Amendment precedents. However, he expects the court’s ruling on these cases will raise deeper legal questions than the initial issues at hand.
“This is probably an epochal case. It’s going to raise more questions than it answers and could define the discussions we will have around these topics for the next 10, 20, even 30 years,” Hurwiz said. “And it’s probably going to do very little to actually answer any of those questions — because they’re hard, hard questions. So if you’re watching this case, expecting this is going to answer the issue once and for all, prepare to be disappointed in really interesting ways.”
