Supreme Court justices appear skeptical of Texas and Florida social media laws

[Stevicus]

https://www.npr.org/2024/02/26/1233506273/supreme-court-social-media-laws

They heard arguments yesterday on social media laws in Florida and Texas.

Legal experts say they're the most important First Amendment cases in a generation. The question is whether states like Florida and Texas can force big social media platforms to carry content the platforms find hateful or objectionable.

"I wonder, since we're 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?" asked Chief Justice John Roberts.

Later, in the hours-long arguments, Roberts returned to the point of government control, arguing that states and private actors are inherently different when it comes to First Amendment analysis.

"There is nothing more Orwellian than the government trying to dictate what viewpoints are distributed in the name of free expression," said Matt Schruers, president of the Computer & Communications Industry Association, a trade group for the social media companies that's involved in the litigation. "And that's what's at issue in this case."

Republicans in Florida and Texas took action, signing sweeping laws that prevent the largest platforms from banning users based on their political viewpoints and require them to provide an individual explanation to users about why their posts have been edited or removed.

"Freedom of speech is under attack in Texas," declared Texas Republican Gov. Greg Abbott at the bill signing. "There is a dangerous movement by some social media companies to silence conservative ideas and values. This is wrong and we will not allow it in Texas."

John Whitehead runs the Rutherford Institute, a conservative-leaning nonprofit group. Whitehead, who filed a friend-of-the-court brief in the cases, said the big social media sites have become the center of people's lives and they should not be engaging in any censorship.

"It's out there to make people think," Whitehead said. "In other words, you can disagree. If someone puts something foolish on, let's say, Facebook, people should respond immediately and start a debate. Debating is the key, not eliminating."

Other allies of Texas and Florida argue the sites are merely hosting content, not making editorial judgments that deserve lots of First Amendment protection.

"The platforms do not have a First Amendment right to apply their censorship
policies in an inconsistent manner and to censor and deplatform certain users," Florida Solicitor General Henry Whitaker told the justices Monday.

This argument was echoed by the ongoing question of whether social media should be considered a utility or a publisher.

The justices will have to decide between radically different conceptions of what social media is. Are these platforms more like old-time phone companies: basically, open to everyone without filtering?

Or, are they more like bookstores and newspapers, places that edit and curate information, that get the highest level of First Amendment protection?

The social media giants are relying in part on a 1974 Supreme Court case, Miami Herald v. Tornillo. Florida tried to force the newspaper to carry op-eds it didn't want to publish. The high court sided with the Herald back then.

Today, the social media sites said, Florida is trying to make the big social media platforms print every single letter to the editor. Users don't want that and neither do advertisers, they said.

It's an interesting case, and the Supreme Court's decision could have wide-reaching ramifications.

One aspect which should be looked at is if other viable options are available. Just as every town has a public square for free speech, perhaps the internet can have its own equivalent. Is free speech rooted in the content of the speech or the technology used to disseminate it? If it's a technological issue, then perhaps some sort of publicly-owned platform can be set up for any member of the public to utilize for to exercise their First Amendment rights. But they'd have to use their real name. Just like a letter to the editor would require.

If they did that, then social media companies would be able to operate freely without having to allow free speech, and anyone who wants to utilize the technology of a virtual "public square" can still do so without impediment - through some sort of governmental platform which would required to adhere to the First Amendment.