The US Supreme Court heard oral arguments Monday on whether social media platforms may ban certain content on their platforms without violating the Constitution’s First Amendment. The court heard arguments concerning a Florida case and a Texas case, in which the state laws banned social media platforms from barring content, specifically conservative content, from using their sites. While Florida’s SB 7072 was found unconstitutional by its state’s appeals court, Texas’ SB 20 was upheld and created an inconsistency in applying the law.
The justices attempted to pin down a key question: whether social media platforms such as Facebook and X (formerly Twitter) are now considered common carriers, such as phone service providers, or if these platforms are more analogous to newspapers. Common carriers, such as phone service providers, may not decline to offer service to a customer based on the content of the communication because this would not be permissible under First Amendment jurisprudence. Whereas newspapers retain editorial authority over their content and may pick and choose what content to publish, and they cannot be regulated as common carriers may.
In entangling these questions, Chief Justice John Roberts asked, “I wonder, since we are talking about the First Amendment, whether our first concern should be with the state regulating what, you know, we have called the modern public square?” Public squares may not participate in content discrimination, but First Amendment analysis differs for private enterprises because private entities cannot be compelled to speak. The court seemed to be leaning towards not upholding both states’ laws, focusing on what it may mean for regulating other e-commerce sites. Justice Sonia Sotomayor raised concerns about where the line would be drawn for sites like Etsy and what it would mean for other companies online.
Section 230 of the Communications Decency Act of 1996, which protects websites from liability for the content included or excluded on their website, was brought up multiple times during the arguments. Justice Amy Coney Barrett stated, “If we say about this is that this is speech that’s entitled to First Amendment protection, I do think then that has Section 230 implications for another case.” She was also concerned that this case would lead to other “landmines” going forward and that this opinion could impact future cases.
Both states’ laws came into effect after the January 6 attack on the Capitol, when many social media platforms blocked content by insurrectionists. The court is expected to pass a ruling this summer.
