The Supreme Court is hearing two cases on Monday that could set new precedents around free speech on social media platforms. The cases challenge two similar laws from Florida and Texas, respectively, which aim to reduce “Silicon Valley censorship” on social media, much like Elon Musk has done at X in the last year.
After four hours of opening arguments, Supreme Court Justices seemed unlikely to completely strike down Texas and Florida’s laws, according to Bloomberg. Justice Clarence Thomas said social media companies were engaging in censorship. However, Chief Justice John Roberts questioned whether social media platforms are really a “public square.” If not, they wouldn’t fall under the First Amendment’s protections.
At one point, the lawyer representing Texas shouted out, “Sir, this is a Wendy’s.” He was trying to prove a point about public squares and free speech, but it didn’t make much sense.
The cases, Moody v. NetChoice and NetChoice v. Paxton, both label social media platforms as a “digital public square” and would give states a say in how content is moderated. Both laws are concerned with conservative voices being silenced on Facebook, Instagram, TikTok, and other social media platforms, potentially infringing on the First Amendment.
“Silencing conservative views is un-American, it’s un-Texan and it’s about to be illegal,” said Texas Governor Greg Abbott on X in 2021, announcing one of the laws the Supreme Court is debating on Monday.
“If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable,” said Florida Governor Ron DeSantis in a 2021 press release, announcing his new law.
NetChoice, a coalition of tech’s biggest players, argues that these state laws infringe on a social media company’s right to free speech. The cases have made their way to the United State’s highest court, and a decision could permanently change social media.
The laws could limit Facebook’s ability to censor pro-Nazi content on its platform, for example. Social media companies have long been able to dictate what kind of content appears on their platform, but the topic has taken center stage in the last year. Musk’s X lost major advertisers following a rise in white supremacist content that appeared next to legacy brands, such as IBM and Apple.
NetChoice argues that social media networks are like newspapers, and they have a right to choose what appears on their pages, litigator Chris Marchese told The Verge. The New York Times is not required to let Donald Trump write an 0p-ed under the First Amendment, and NetChoice argues the same goes for social media.
NetChoice’s members include Google, Meta, TikTok, X, Amazon, Airbnb, and other Silicon Valley staples beyond social media platforms. The association was founded in 2001 to “make the Internet safe for free enterprise and free expression.”
Social and political issues have consumed technology companies in recent months. Google’s new AI chatbot Gemini was accused of being racist against white people last week. In January, Mark Zuckerberg, sitting before Senate leaders, apologized to a room of parents who said Instagram contributed to their children’s suicides or exploitation.
Both of these laws were created shortly after Twitter, now X, banned Donald Trump in 2021. Since then, Musk has completely revamped the platform into a “free speech absolutist” site. Similar to Governors Abbot and DeSantis, Musk is also highly concerned with so-called “liberal censorship” on social media.
The Supreme Court’s decision on these cases could have a meaningful impact on how controversy and discourse play out on social media. Congress has faced criticism for its limited role in regulating social media companies in the last two decades, but this decision could finally set some ground rules. It’s unclear which way the Court will lean on these cases, as the issues have little precedent.
