• by Wendy Davis , February 26, 2024

The Supreme Court wrestled Monday morning with new laws in Florida and Texas that impose sweeping new regulations on tech companies' ability to take down users' posts.

During arguments that lasted nearly four hours, some justices expressed concern with portions of both laws, but it wasn't clear whether at least five of the court's nine judges are inclined to block the statutes.

Both states' laws broadly attempt to prohibit tech companies from suppressing speech in certain circumstances. In both cases, the measures were championed by Republican lawmakers who claimed that tech companies were disproportionately quashing conservative ideas.

Florida Attorney General Henry Whitaker, who defended Florida's law, said that statute furthered the First Amendment by “promoting and ensuring the free dissemination of ideas.”

Former U.S. Solicitor General Paul Clement, who represented the tech industry, countered that the First Amendment protects platforms' ability to wield editorial control over the material on their platforms.

“When editors or speakers engage in viewpoint discrimination, that is their First Amendment right,” Clement said.

“It is also absolutely vital to the operation of these websites because, if you have to be viewpoint-neutral, that means that if you have materials that are involved in suicide prevention, you also have to have materials that advocate suicide promotion. Or, if you have materials on your site that are pro-Semitic, then you have to let on materials onto your site that are anti-Semitic," he added.

Among other provisions, the Florida law subjects social media companies to fines of $250,000 per day for “deplatforming” candidates for statewide office, and $25,000 per day for other offices. (The bill defines deplatforming as suspending for more than 14 days or banning.) It also bans large social media platforms from suppressing posts by journalistic enterprises based on content.

The Texas measure includes provisions prohibiting social media platforms with at least 50 million users from removing or suppressing lawful posts based on viewpoint.

NetChoice and the Computer and Communications Industry Association challenged both laws on First Amendment grounds, aruging that private companies have the right to decide what speech to carry -- including the right to suppress objectionable content, such as posts by anti-vaxxers, or posts advocating racism. The Interactive Advertising Bureau backed the challenge, arguing that businesses don't want to advertise next to offensive posts.

A trial judge and a three-judge panel of the 11th Circuit Court of Appeals issued a preliminary injunction blocking the bulk of the statute as unconstitutional. In Texas, a trial judge blocked the law, but the 5th Circuit said it should be reinstated. (That decision to reinstate the law was stayed, pending Supreme Court review.)

On Monday the matter landed at the Supreme Court, where several judges appeared troubled by provisions that regulated how social platforms -- meaning services like Meta, YouTube, TikTok and X (formerly Twitter) -- treated content.

Justice Brett Kavanaugh, for instance, repeatedly pushed back on Florida Solicitor General Andrew Whitaker's stance that the law advanced the First Amendment by preventing social platforms from “censoring” speech.

“In your opening remarks, you said the design of the First Amendment is to prevent 'suppression of speech,'” Kavanaugh told Whitaker.

“And you left out what I understand to be three key words in the First Amendment ... 'by the government,'” Kavanaugh added.

“When a private individual or private entity makes decisions about what to include and what to exclude, that's protected generally editorial discretion, even though you could view the private entity's decision to exclude something as 'private censorship,'” Kavanaugh said later.

Other justices questioned the procedural posture of the appeal, indicating that the challenge to the laws reached the Supreme Court prematurely because lower court judges blocked the statutes without first establishing their full scope.

One specific question that appeared to weigh on some judges' minds was whether the laws could apply to a broader range of services than social media. For instance, some of the judges questioned whether the Florida law would apply to services beyond social networking -- like Gmail or Uber.

U.S. Solicitor General Elizabeth Prelogar, who argued that the laws should be blocked, acknowledged that the Florida's law sweep was unclear.

“We think there's a lot of ambiguity about what the state law requires,” Prelogar said.

The fact that judges even questioned the laws' applicability to services like email indicates they're struggling with the statutes, according to Santa Clara University law professor Eric Goldman, co-director of the school's High Tech Law Institute.

“The laws mostly baffled the justices due to the indeterminacy of who the law reaches and which functions are regulated (justices called the laws 'sprawling,' 'broad,' and 'unspecific'),” he writes in an emailed statement. “Because the laws are so complex and baroque, the justices aren't sure if they can decide now that every aspect of the laws are unconstitutionally infirm. It seemed clear from the justices' questions that at least some parts are, but the justices also struggled with functionalities at the margins (such as ridesharing or email) that may or may not be within the law's scope.”

The court is expected to issue a decision by June.