Benzinga - by Natan Ponieman, Benzinga Editor.
Should social media companies have the right to censor content they deem problematic?
That's the question being debated at the Supreme Court in a case that could have vast consequences for industry giants like Facebook and Instagram, owned by Meta Platforms Inc (NASDAQ:META); YouTube, owned by Alphabet Inc (NASDAQ:GOOG) (NASDAQ:GOOGL) and Elon Musk's X, formerly known as Twitter.
DeSantis, Abbott Spark Free Speech Fight: Starting in May 2021, the saga began when Florida Gov. Ron DeSantis signed into law a bill that prohibits social media companies from removing posts by their users. The law was aimed at preventing social media giants from banning political candidates in the run-up to elections.
The decision was made within the broader context of an ideological war existing at the heart of social media companies that crystallized in the suspension of Donald Trump's Twitter account after the Jan 6, 2021 attacks on the U.S. Capitol.
The dominant narrative among Florida Republicans is that social media companies should not have the right to decide what information users can or cannot share. Yet the backdrop was a concern that these companies are disproportionately suspending the accounts of Republican politicians and commentators.
"Today, Floridians are being guaranteed protection against the Silicon Valley power grab on speech, thought, and content," DeSantis wrote at the time of signing the bill.
Florida's decision was followed a few months later by a similar bill approved by Texas Gov. Greg Abbott that prohibited big tech companies from blocking users or banning posts based on their viewpoints. The law was aimed at the largest companies, as it applied specifically to social media companies with more than 50 million monthly active users in the U.S.
"It is now law that conservative viewpoints in Texas cannot be banned on social media," Abbott said in 2021, also pushing the view that Silicon Valley-based tech companies have it in for GOP ideologies.
Also read: US Supreme Court Just Saved Apple $503M After Putting An End To A 14-Year-Long Legal Battle
Social Media Censorship Goes To The Supremes: Both laws were blocked by the Supreme Court on account of their presumed unconstitutionality. First amendment law around free speech does not allow governments to control what content the media should or should not publish.
Yet what's at stake goes beyond the particular legislation of these two states. In the last decade, social media companies grew to encompass much of the media consumption by the general populace. Critics have argued that, as the main gateway into the internet for a majority of users, the role of the platforms exceeds that of traditional newspapers.
The Supreme Court ruling, expected in June, will define whether social media companies should be ruled by the laws governing traditional media or whether they should be considered "common carriers."
Common carriers, like telecommunication companies, are understood as basic platforms where media companies exist, but not as issuers of expression in themselves.
On Monday, the court heard arguments on Moody v. NetChoice and NetChoice v. Paxton, the cases dealing with the issues in Florida and Texas.
NetChoice is the industry association challenging the laws in both states. It counts many of the largest tech companies amongst its members, including Alphabet, Meta and X, as well as Etsy Inc (NASDAQ:ETSY), Airbnb Inc (NASDAQ:ABNB), Alibaba Group Holding Ltd – ADR (NYSE:BABA), Amazon.com Inc (NASDAQ:AMZN), Pinterest Inc (NYSE:PINS), Snap Inc (NYSE:SNAP), eBay Inc (NASDAQ:EBAY) and LYFT Inc (NASDAQ:LYFT).
According to Vox, at least five of the nine Supreme Court Justices on Monday appeared to be leaning toward the opinion that state control over information published by social media companies would be prohibited by the First Amendment.
While the original laws were meant to control the way social media giants handle information, the upcoming Supreme Court ruling could extend beyond the scope of social media.
NetChoice is challenging the laws with a "facial challenge," which is a legal term to say that if the court rules in its favor, the laws issued in Florida and Texas could not be applied to any other tech company.
This strategy, if successful, would prevent similar laws from appearing around the country but could also delay the trial as it would force the court to rule over the entire tech industry, including other companies like Uber Technologies Inc (NYSE:UBER), eBay or Etsy, where political opinions are not a main driver of content moderation.
The court could have trouble agreeing with the sweeping facial challenge as opposed to ruling on the particular cases of social media companies, potentially being forced to send the cases back to the lower courts where they originated.
Also read: Elon Musk’s X Denied Supreme Court Hearing On Federal Surveillance Disclosure Ban
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