The U.S. Supreme Court recently heard oral arguments concerning state laws that seem to tie social media content regulation to the First Amendment. The legal quandaries pertained specifically to differing outcomes in Florida and Texas. Both states enacted legislation that banned social media platforms from barring certain content, with particular focus on conservative views.
Specifically, the court evaluated Florida’s SB 7072, which had been deemed unconstitutional in a state appellate court, and contrasted it with Texas’ SB 20 that had been upheld. The contrasting outcomes presented an inconsistency in enforcement and interpretation of similar legal language.
During the examination of the cases, the Supreme Court attempted to ascertain whether social media platforms are akin to common carriers (like telephone service providers) or more analogous to newspapers. This categorization is crucial for two main reasons: First, common carriers are not entitled to refuse services based on content as per First Amendment jurisprudence. Conversely, newspapers, under the right to editorial discretion, are allowed to select what they publish and are exempt from regulation akin to that of common carriers.
The deliberations brought forward deeper and more intricate issues, such as the question asked by Chief Justice John Roberts, “I wonder, since we are talking about the First Amendment, whether our first concern should be with the state regulating what, we have called the modern public square?” This question poses a significant challenge in legal terms, especially because public squares are prohibited from discriminatory content regulation, unlike private entities that cannot be compelled to speak.
Adding to the complex dimension of these cases, reference was often made to Section 230 of the Communications Decency Act of 1996, which ISP’s from liability for content included or excluded on their platforms. Justice Amy Coney Barrett voiced concerns about potential implications for Section 230 in this case.
The laws in question were both enacted after the January 6 attack on the Capitol when many social media platforms blocked content by insurrectionists. A definitive ruling on these cases by the Supreme Court is anticipated this summer.
The full coverage of the oral arguments can be found here.