Top Court Social Media Cases Unite Odd Bedfellows on Free Speech

Supreme Court cases that started as a political battle over perceived censorship of conservative speech have united organizations on the left and right who are urging the justices to be careful in regulating social media companies.

At the heart of the two cases set for argument on Monday are Florida and Texas laws that, in the words of Florida Gov. Ron DeSantis (R), were meant to fight “against the Silicon Valley elites” and their censorship of conservative voices.

At the Supreme Court, though, challenges to those laws have pitted those who want to use government power to correct perceived censorship against those who view them as encroaching on individual rights and the ability to rein in dangerous speech.

Dozens of friend-of-the-court briefs filed by groups ranging from the libertarian Goldwater Institute to the progressive Lawyers’ Committee for Civil Rights Under Law to national security officials under Republican and Democratic administrations urge the justices to strike down the laws or at least proceed with caution.

“It’s not a left, right issue,” said Marc Epstein, senior counsel for the Lawyers’ Committee’s Digital Justice Initiative. The First Amendment issues in the cases have wide ranging implications, particularly for people of color, Epstein said.

Competing Conclusions

The laws approved by Republican-controlled states prohibit the largest social media companies—such as Meta Platforms’ Facebook and X, formerly known as Twitter—from moderating content through censorship or “deplatforming” based on the content of the speech or the speaker’s view point. They also require the companies to disclose when and how they engage in content moderation.

Two appellate courts, in opinions written by judges appointed by former President Donald Trump, came to competing conclusions on the legality of those laws.

The US Court of Appeals for the Fifth Circuit said the Texas law didn’t run afoul of the companies First Amendment rights in part because it doesn’t regulate their speech at all. Instead, “it protects other people’s speech and regulates the Platforms’ conduct,” the court said.

The Eleventh Circuit, ruling on the Florida measure, came to the opposite conclusion, saying that “with minor exceptions, the government can’t tell a private person or entity what to say or how to say it.”

The US Supreme Court took up Moody v. NetChoice out of Florida and NetChoice v. Paxton from Texas, presumably to resolve the dispute.

Political Hue

For groups on both sides of the ideological spectrum that have come out against the laws, the issue is primarily individual rights.

Timothy Sandefur, who filed an amicus brief on behalf of the Goldwater Institute in support of the trade associations, said that the think-tank “has been subject to social media censorship,” particularly on Facebook. It’s frustrating and has made the group’s mission more difficult, he said.

Nevertheless, Goldwater “respects that Facebook is a privately owned business” and neither it “nor any other entity has a legal or moral right to compel Facebook to convey its messages,” Sandefur said in his brief.

The Lawyers’ Committee warned the laws will directly affect the ability of people of color to participate in online discourse.

If allowed to stand, the laws would make it practically impossible for social media companies to regulate speech that is hateful and harassing—something that is disproportionately directed at minority users, said Epstein, the Lawyers’ Committee attorney.

“When you experience hate and discrimination, it’s not only harmful to physical and mental health,” but often those users disengage from online discussions, Epstein said. “It actually chills the speech of Black people.”

Others note that the lack of content moderation can threaten public safety.

“The national security threat posed by online content has serious, real-world consequences, including inspiring violent attacks intended to intimidate and coerce the civilian population and affect government policy through intimidation and coercion,” the national security experts said in their brief.

Though efforts to moderate this content “are far from perfect,” there “can be no doubt that the nation’s security benefits from social media content moderation efforts,” they said.

Scott Wilkens of the Knight First Amendment Institute said on Bloomberg Law’s “Cases and Controversies” podcast that the enormous number of amicus briefs illustrates that this is a case of incredible importance

Wilkens, whose group filed an amicus brief in support of neither party, said that “while there’s no question that the two laws at issue here came out of states that are controlled” by Republicans, the cases “come to the court without a political hue.”