The Supreme Court is set to witness a showdown between Big Tech platforms and their Republican adversaries regarding the regulation of online speech. However, when it comes to the actual battle of expressing opinions on social media, conservatives have primarily emerged victorious.
The court is currently dealing with two cases that originated from the aftermath of Donald Trump’s banning from various social media platforms following the events of January 6th. In response to this, lawmakers in Florida and Texas took action, passing laws in 2021 that aim to restrict tech companies and prevent them from deplatforming political candidates, thereby ensuring that all viewpoints remain accessible online.
Tech companies are asserting that these laws infringe upon their First Amendment rights, and the Supreme Court is now in a position to have the final say.
But over the past three years, there has been a shift in the political landscape on social media, with conservatives gaining more traction. Elon Musk, who identifies as a “free speech absolutist,” acquired Twitter and rebranded it as X, resulting in a transformation from a closely monitored platform to a more loosely policed environment.
In late 2022, Musk allowed Trump, Rep. Marjorie Taylor Greene (R-Ga.), and other far-right figures who had previously been banned, back onto Twitter. Trump was reinstated on Facebook and Instagram by Meta in early 2023, and YouTube followed suit in March 2023.
The conservative-leaning app ecosystem is expanding, with Trump himself launching his own platform called Truth Social, and other far-right sites like Parler and Rumble gaining significant popularity.
“We find ourselves in a new era,” remarked Nu Wexler, a seasoned tech consultant with experience working at prominent tech giants such as Twitter, Facebook, and Google, in a conversation with POLITICO. “One could argue that the laws in Texas and Florida may no longer be essential, given the increased availability of social platforms for conservatives.”
According to Wexler, platforms have not taken action due to any legal obligation, but rather in response to political pressure and their concern about upsetting conservatives.
According to former Florida state Sen. Ray Rodrigues, a Republican author of the Florida law, there has been a noticeable shift in favor of conservatives on social media. Rodrigues acknowledges that the practice of deplatforming has become less prevalent.
Rodrigues believes that Musk’s influence on Twitter played a significant role in bringing about change. However, he also acknowledges his own contribution in pressuring other platforms to open up. According to Rodrigues, these platforms only started altering their behavior because they feared the potential consequences of a Supreme Court ruling that could disrupt their industry.
Even now, he continues to defend his stance on the Florida law, asserting that it should remain in place to prevent any regression.
The lawsuits scheduled for Monday, titled “Moody v. NetChoice” and “NetChoice v. Paxton,” originated from legal challenges presented by the leading lobbying organizations of the tech industry, namely NetChoice and the Computer and Communications Information Association. These groups filed lawsuits against both Texas and Florida shortly after the enactment of their respective laws, arguing that these legislations infringe upon the tech platforms’ First Amendment rights to exercise editorial discretion. They claim that these laws compel the platforms to host content that violates their own rules.
According to Carl Szabo, the vice president and general counsel of NetChoice, the fact that social media sites are re-platforming conservatives highlights the absurdity of the state laws governing these platforms. He argues that businesses should have the freedom to act in their best interests within a free market. Szabo firmly believes that no government entity should have the authority to dictate what speech is permissible on the internet.
Legal experts anticipate that the social media companies will likely come out on top in these cases. Lower courts have already put both laws on hold. The Supreme Court’s involvement comes after federal circuit judges reached contrasting decisions regarding the constitutionality of these laws. The 11th Circuit mostly invalidated Florida’s law, while the 5th Circuit sided with Texas.
According to Szabo, there is no clear solution when it comes to complying with hosting lawful yet offensive content. He asserts that if companies were to carry such content, it would go against their policies and could disrupt their advertising business models. This would include offensive material like Nazi propaganda and terrorist content.
Texas is considering a law that would prevent platforms from engaging in viewpoint-based censorship, except in cases of incitement of violence, criminal activity, and child exploitation. If upheld, this law would have significant implications for online platforms. Meanwhile, Florida already has a law in place that imposes substantial fines on platforms for banning statewide and local candidates. These laws reflect an ongoing debate about the role of online platforms in moderating content and the limits of free speech in the digital age.
The laws sparked a heated national debate on free speech, bringing to the forefront the delicate balance between social media platforms’ responsibility to ensure safety and their commitment to fostering open discussions and the exchange of ideas.
The debate over tech-industry censorship of conservative views has lost some momentum with the restoration of several far-right figures. However, there are still Republicans who continue to passionately fight against what they perceive as censorship by the tech industry.
House Judiciary Chair Jim Jordan (R-Ohio) has spent the past year subpoenaing former White House officials as part of an ongoing investigation. The investigation claims that the Biden administration pressured platforms to censor information related to the 2020 election and Covid-19. In addition, the Supreme Court is scheduled to hear a case next month called Murthy v. Missouri. This case, brought forth by GOP-led states, also accuses President Joe Biden’s team of violating the First Amendment by pressuring platforms to censor speech.
According to Adam Candeub, Trump’s former acting assistant secretary of commerce, history encompasses more than just the events of 2021. In his amicus brief supporting the states’ arguments, Candeub emphasizes the broader significance of the cases at hand. He raises the question of whether a democracy can endure when a limited number of companies have the power to heavily influence outcomes.
The fate of existing and future state laws seeking to regulate tech companies may hinge on the Supreme Court’s ruling on the Texas and Florida laws. NetChoice is currently challenging four state laws that aim to regulate tech companies’ practices related to kids’ online safety, arguing that they also violate the First Amendment. If the Court’s ruling is broad in scope, it could have far-reaching implications for these laws and others like them.
More than 20 state attorneys general, representing both political parties, have come together to advocate for the court to affirm their authority to regulate social media platforms. They emphasize the need for their laws to align with the First Amendment in order to ensure consistency and protect the rights of individuals.
According to Daphne Keller, an internet law professor at Stanford Law School, the justices have the option to craft a limited ruling that favors the platforms. She suggests that the court does not necessarily have to completely shut down the possibility of future laws, but they should not provide a clear guide on how another law might pass legal scrutiny.
Regardless of the court’s ruling, it is highly probable that states will persist in enacting laws aimed at regulating the tech industry. NetChoice’s Szabo emphasizes the need for a definitive court ruling that solidifies the constitutional protection of speech rights for these platforms.
According to the speaker, it is important for every state and governmental entity to understand that the First Amendment applies to websites as well. He emphasized that there is no way to bypass the protections provided by the First Amendment, and it is crucial for everyone to recognize that it safeguards the rights of all individuals.
