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Washington — The Supreme Court is hearing arguments Monday in a pair of social media cases that could transform online speech.

The two cases concern disputes over Republican-backed laws in Florida and Texas that aim to restrict social media companies from moderating content, which tech groups representing platforms like Facebook and X see as a violation of their First Amendment rights. 

The laws, both passed in 2021, came in response to what their backers saw as discrimination by social media platforms. The controversy followed social media companies’ decisions to ban former President Donald Trump from their platforms after his handling of the Jan. 6, 2021, attack on the U.S. Capitol. (Trump’s accounts were eventually reinstated.)

The states in the case argue that the social media companies should be treated like any business and be restricted from removing posts or banning users from their platforms based upon their views. But the social media companies counter that the laws infringe upon their editorial discretion, arguing that they should be treated more like news outlets. 

Both the Biden administration and Trump have weighed in on the dispute, upping the ante on the political implications. 

While Trump filed a brief in support of the state laws, arguing that a platform’s “decision to discriminate against a user” is not protected under the Constitution, the Biden administration filed a brief in support of the tech groups. It argued among other things that the high court has “repeatedly held” that the presentation of speech generated by others is protected under the First Amendment, as is often seen among the opinion pages of many newspapers.

The Texas and Florida social media laws

One of the cases involves a 2021 Florida law that regulates large social media platforms in an effort to combat claims of censorship. It does so by prohibiting platforms from engaging in certain types of content moderation, while requiring platforms to notify a user if the company removes or alters a post. It also compels platforms to make disclosures about their operations and policies. 

Two tech groups challenged the Florida law in federal court in 2021. The district court blocked enforcement of the measure, determining that it likely violates the First Amendment. Florida appealed the decision, before the U.S. Court of Appeals for the 11th Circuit sided with the trade groups. 

The other case centers on a Texas law that likewise regulates platforms, imposing restrictions on content moderation, requiring a platform to notify a user when content is removed, and compelling platforms to disclose how they moderate and target content.

The tech groups challenged the Texas law in federal district court in September 2021 on a constitutional basis. The lower court blocked enforcement of two of its provisions, but a federal appeals court in New Orleans allowed the law to take effect. The 5th Circuit later lifted the lower court’s injunction, determining that states can regulate content-moderation activities without violating the First Amendment.

Oral arguments in the social media cases 

In oral arguments on Monday, Florida Solicitor General Henry Whitaker laid out his case first, arguing that the social media platforms don’t have a First Amendment right to apply their censorship policies “in an inconsistent manner” and to “deplatform” or censor certain users. 

Whitaker said that although social media platforms achieved success by “marketing themselves as neutral forums for free speech,” they now “sing a very different tune.”

“They contend that they possess a broad First Amendment right to censor anything they host on their sites, even when doing so contradicts their own representations to consumers,” Whitaker said. “But the design of the First Amendment is to prevent the suppression of speech, not to enable it.”

Chief Justice John Roberts questioned whether the first concern should be with the state regulating “the modern public square.” Whitaker argued that states have an interest in ensuring the free dissemination of ideas, since large businesses have the power to silence speakers.

The justices attempted to drill down on the distinctions between the social media platforms and newspapers, noting differences between Facebook’s news feature, for example, from other aspects of the platform. 

“I feel like there’s a lot of indeterminacy in this set of facts and in this circumstance,” Justice Ketanji Brown Jackson said. “We’re not quite sure who it covers, we’re not quite sure exactly how these platforms work.”

Whitaker argued that the high court needs to draw a line between a “selective speech” host that’s exercising editorial control and a “common carrier” host.

Paul Clement, an attorney for the tech groups, argued that the Florida law violates the First Amendment “several times over” by interfering with editorial discretion, compelling speech and discriminating on the basis of content, speaker and viewpoint.

“Given the vast amount of material on the internet in general and on these websites in particular, exercising editorial discretion is absolutely necessary to make the websites useful for users and advertisers,” Clement said. “And the closer you look at Florida’s law, the more problematic the First Amendment problems become.”