The Supreme Court Could Determine the Future of Social Media Content Moderation

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The Supreme Court Could Determine the Future of Social Media Content Moderation

Next week, the Supreme Court will hear arguments for two cases that could determine the fate of social media content moderation.

In 2021, the states of Florida and Texas both passed laws that aim to address social media sites’ content moderation practices and their perceived bias against conservative viewpoints. The cases being heard in the Supreme Court next week were both filed by industry groups representing the social media sites, who argue that the laws infringe on their First Amendment rights to decide what content they publish and promote.

If the laws are upheld, then the platforms’ ability to curate their newsfeeds to make them more engaging for users could be severely curtailed, drastically altering social media sites. Whichever way the Court rules, the outcomes of the two cases could set the precedent for how content moderation is handled in the U.S. for decades to come.

What are the cases about?

In 2021, both Florida and Texas passed laws that would limit the power of the largest social media companies to moderate and curate content on their platforms. Republicans across the U.S. have grown increasingly frustrated by censorship on major social media sites. The legislatures of both Florida and Texas are Republican-controlled.

Florida’s Senate Bill 7072, which was signed by Governor Ron DeSantis in May 2021, prohibits social media platforms from “willfully deplatforming a candidate,” a reference to both X (at the time named Twitter) and Meta locking President Donald Trump out of his accounts on their platforms after his supporters stormed the U.S. Capitol on Jan. 6 that year. The law also requires platforms to publish the criteria they use for banning users and content, and to apply these criteria consistently. Floridians would be able to sue social media platforms for violating the new law.

Texas’ House Bill 20 was signed by Governor Greg Abbott in September 2021. The bill prohibits censorship based on a user’s viewpoint, the viewpoint represented by the user, or the user’s location. Similarly to the Florida bill, it requires social media sites to publish an explanation of the types of content they remove and why. Texans would also be able to sue social media companies for violating the new law.

What has happened so far?

Shortly after each law was passed, industry associations, acting on behalf of the social media companies, challenged their legitimacy. In both cases, the trade associations challenged the bills on the grounds that they infringe on the First Amendment rights—including the right to free speech—of the social media companies.

Three days after DeSantis signed the Florida bill, industry groups Netchoice and Computer and Communications Industry Association (CCIA), representing social media platforms including Google and Facebook, sued the state of Florida to enjoin and invalidate the bill. In their complaint, the industry groups argued that the law is a “frontal assault on the First Amendment and an extraordinary intervention by the government in the free marketplace of ideas that would be unthinkable for traditional media, book sellers, lending libraries, or newsstands.”

The case has since worked its way up the U.S. court system. After the U.S. District Court for the Northern District of Florida issued a preliminary injunction in June 2021 that prevented the law from being enforced, the Floridian Attorney General appealed to the U.S. Court of Appeals for the Eleventh Circuit. The Court of Appeals upheld the preliminary injunction in May 2022, leading the State of Florida to appeal to the Supreme Court.

Similarly, less than two weeks after Abbott signed the Texas bill, Netchoice and CCIA filed a suit against the state of Texas, arguing that the law would violate the tech companies’ First Amendment rights. 

Just before the law was due to go into effect, the U.S. District Court for the Western District Of Texas blocked it. The Texan Attorney General appealed and was successful, with the 5th U.S. Circuit Court of Appeals ruling to reinstate the law in March 2022. This time, the industry associations applied for an emergency injunction from the Supreme Court, which it granted. After the the 5th U.S. Circuit Court of Appeals upheld the law in September 2022, the industry groups petitioned the Supreme Court to review the decision.

In September 2023, the Supreme Court said it would hear arguments for both cases in early 2024. 

Why does this matter?

The Supreme Court will be separately deciding whether the “must-carry” obligations—rules that would require the platforms to host content they might not otherwise—violate the First Amendment, and whether the reporting and transparency obligations do. If the Supreme Court were to rule in favor of Texas and Florida, the laws would dramatically change social media sites’ freedom to moderate content on their sites in those states, and could have much wider reaching consequences beyond their borders, says Daphne Keller, director of the Program on Platform Regulation at Stanford University’s Cyber Policy Center.

The must-carry obligations included in both the Texas and Florida laws are fairly expansive, meaning a ruling in their favor could open the door to other content moderation laws, says Keller. For example, progressive states might be able to ban platforms from hosting certain types of content, as conservative states might pass laws similar to the Texan and Floridian ones that require them to carry it, she suggests.

And if social media sites are actually required to host all legal content, conservative lawmakers may not like what they get, she says. “I don’t think the constituents of these lawmakers in Texas and Florida actually want to go to YouTube and suddenly be inundated with porn and scams and pro-anorexia content,” says Keller. “They don’t want their moms encountering Holocaust denial content when they’re trying to see family pictures on Facebook.”

For the reporting and explanation requirements, the ruling could be relatively narrow and only permit rights to notification and to appeal, as the Texas law does, says Keller. Or they could be much more expansive, opening the way for many other transparency laws.

Even if the social media companies win and the laws are struck down, the Court could signal what other legislation would be compatible with the First Amendment, says Keller. Therefore, the cases are likely to shape the future of social media regardless of which side wins.

What comes now?

The Supreme Court will hear oral arguments on Feb. 26. The justices could issue a ruling any time after this, but the most likely timeline is for the ruling to be handed down in late June or early July, says Keller.

The three legal experts that TIME spoke with all stressed how difficult it is to predict the ruling. However, given the nine Supreme Court justices’ published opinions and political inclinations, both Keller and Clay suggested that the three liberal-leaning justices would likely rule in favor of the social media sites to prevent hate-speech from being made permissible online. Then only two of the more conservative justices would need to take the more pro-business, private property-preserving stance to reach a majority decision in favor of the social media companies, striking down the laws.

Even if this were to happen, it won’t spell the end of legal challenges against social media companies from conservatives. The Supreme Court will hear another social media censorship case in 2024, this one originally filed by Louisiana’s Attorney General Jeff Landry and Missouri’s Attorney General (now Senator) Eric Schmitt, which alleges that President Joe Biden and his administration colluded with social media platforms to suppress free speech, including information related to COVID-19 and election integrity, under the guise of combating misinformation. In March 2023, the House Judiciary Committee held a hearing on the case, with Republicans condemning the partisan “weaponization” of the federal government and Democrats arguing the hearing was spreading lies. 

In a September 2023 statement following the appeals court upholding the case against the Biden Administration, the White House said: “This administration has promoted responsible actions to protect public health, safety and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections. Our consistent view remains that social media platforms have a critical responsibility to take account of the effects their platforms are having on the American people but make independent choices about the information they present.”

Both cases stem from conservative concerns over content moderation decisions being made by social media companies, the leadership of which they perceive as leaning left. These concerns are unlikely to go away any time soon.

Taking a historical view, this isn’t entirely out of the ordinary, says Calvert. For each new form of medium that comes along—print, radio, cable TV, even video games—the courts have had to make judgements, based on the specifics of that medium, the extent to which the distributors should have editorial First Amendment rights. For example, in 1994, the Supreme Court ruled that the U.S. government could require TV networks to devote some channels to local and public broadcast stations. The arguments being heard next week could have similarly historic implications as the ones made for other information distributors.

“The decision will be momentous,” he says. “Either way and whatever comes down.”

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