The U.S. Supreme Court will decide whether laws in Texas and Florida violate the First Amendment by prohibiting social media platforms from moderating user content.
The Texas law, HB 20, bars social media platforms with more than 50 million monthly users from “censoring, banning, demonetizing or otherwise restricting” content based on the speaker’s viewpoint. It permits Texas residents to sue a social media platform if they are censored based on their political ideology.
Texas argues that social media platforms are common carriers due to their market dominance and as such are central forums for public debate. The social media companies, represented by NetChoice and the Computer and Communications Industry Association, sued Texas Attorney General Ken Paxton, arguing that HB 20 violates the First Amendment because it controls the speech appearing on their platforms and prevents them from removing political disinformation, violent content and hate speech. In NetChoice v. Paxton, the 5th U.S. Circuit Court of Appeals ruled in favor of Texas, holding that HB 20 chills censorship, not speech, and that corporations do not have the protection of the First Amendment to censor what people say.
A Florida statute called the Stop Social Media Censorship Act imposes daily penalties ranging from $25,000 to $250,000 for a social media company’s “deplatforming of a political candidate or journalistic enterprise.” In Moody v. NetChoice, the 11th Circuit Court of Appeals noted that the First Amendment protects private speech from government regulation. It ruled that social media platforms are not government actors but are private entities with First Amendment rights, and concluded that their content moderation or editorial judgment are protected speech. The 11th Circuit ruled in favor of the social media companies and enjoined most of the Florida statute, exempting any disclosure provisions.
The Supreme Court, which must now resolve this circuit split, heard oral arguments in the cases at the end of February. At that time, the justices seemed skeptical of the states’ First Amendment claims. Several justices noted that there is a substantial line of Supreme Court cases that hold the First Amendment protects editorial control. Justice Brett Kavanaugh noted that social media platforms are not the government, and Justice Elena Kagan called the laws overly broad and ambiguous.
The court will rule in these cases by the end of June.
Susan Frederick is NCSL’s senior federal affairs counsel.