Supreme Court hears landmark cases on free speech and social media moderation in Texas, Florida

The U.S. Supreme Court on Monday is hearing arguments on whether laws in Texas and Florida that ban social media companies from removing content are constitutional. A decision will be made by June.

The central debate is whether social media platforms like TikTok, Facebook and X, formerly Twitter, should be able to decide for themselves what content is allowed — or not allowed — on their sites.

Here’s everything you need to know about the case.

⚖️ What are Texas and Florida lawyers arguing for in front of the Supreme Court?

Texas and Florida argue that social media platforms should not be allowed to remove users’ posts, potentially even ones that violate content policies and promote misinformation or hate.

Officials from the states argue that laws imposing restrictions on what social media companies are allowed to moderate are constitutional because it’s about regulating the business side of the social media platforms, not speech.

The Florida law was passed in May 2021 and the Texas law in September 2021. Both were made in response to decisions by Facebook and X to block former President Donald Trump from the platforms because of his posts related to the Jan. 6 insurrection.

X returned access to Trump in November 2022 under new ownership by Elon Musk. Meta, which owns Instagram and Facebook, lifted its ban on Trump in January 2023.

• Facebook and Twitter largely 'culpable for all the harm, all the hate, all the death' in Capitol attack: Former Obama adviser (Yahoo Finance)

📖 What are the two cases being presented?

• The Florida court case is Attorney General Ashley Moody v. NetChoice, LLC, which was filed in September 2022.

• The Texas court case is NetChoice, LLC v. Attorney General Ken Paxton, which was filed in December 2022.

🏛️ What to know about Florida’s law

In February 2021, Florida Gov. Ron DeSantis proposed a state bill that would stop social platforms from de-platforming candidates for office. To de-platform is to prevent someone from using the opportunity to make their ideas or beliefs known or shared publicly because said ideas or beliefs might be considered dangerous.

The bill argued that social media platforms could be fined if they banned a running candidate for over 60 days or banned any “journalistic enterprises” operating in Florida with either 100,000 monthly users or 50,000 subscribers.

✍ What do I need to know about the Texas law?

In September 2021, Texas passed a law that makes it illegal for platforms to censor user content based on viewpoint and requires the platforms to provide detailed reports about their moderation policies. The law also allows individual internet users the ability to sue social media platforms.

When Gov. Greg Abbott signed the law, he reiterated his beliefs that social media is “a palace for healthy public debate where information should be able to flow freely — but there is a dangerous movement by social media companies to silence conservative viewpoints and ideas.”

🛑 Who is opposing Texas's and Florida’s laws — and why?

NetChoice, a lobbying group for technology companies, and the Computer & Communications Industry Association (CCIA), a trade group for social media companies, are representing search engines and social platforms like Google and Facebook in the two cases.

Both industry groups argue that the laws in Texas and Florida infringe on the platforms’ First Amendment rights. The First Amendment argues that the government cannot hinder the freedom of speech or of the press.

Tech groups have argued that the First Amendment gives companies the right to take down whatever content they see fit because social media platforms should be allowed to have the ability to make editorial decisions about content featured on their products.

It’s also not just social media platforms that are nervous. The Wikimedia Foundation, which is the nonprofit that runs Wikipedia, has filed a “friend-of-the-court” brief with the Supreme Court supporting challenges to the Texas and Florida laws.

👩🏻‍💻 What are the differences between Texas's and Florida’s social media laws?

Both laws aim to address conservative concerns that social media companies are liberal-leaning and therefore are censoring users based on opposing viewpoints. But the details between the laws vary.

Florida’s law includes protecting political candidates and journalistic enterprises. Texas’s law has a broader protection for “viewpoint.”

Fifth Circuit Court of Appeals Judge Andrew S. Oldham, a Trump appointee, wrote in his decision upholding the Texas law, that the Florida law “prohibits all censorship of some speakers” while the Texas law “prohibits some censorship of all speakers.”

The transparency expectations for social media companies differ as well. Florida wants social media companies to provide thorough explanations for why it decides to remove or ban posts. Texas requires platforms to provide reasons when they take down any post.

In Florida’s law, individuals are allowed to seek “substantial damages” from social media companies if they are de-platformed.

🗞️ Why are people arguing whether or not social media is like a newspaper?

A recurring talking point in the debate is whether tech platforms should have moderation standards comparable to those at more traditional media outlets like newspapers.

“Just as the government may not tell the Miami Herald which editorials to publish or MSNBC which interviews to broadcast, the government may not tell Facebook or YouTube which third-party speech to disseminate or how to disseminate it,” lawyers for NetChoice and the CCIA wrote in a filing.

While there are obvious differences between newspapers and social media platforms, the ultimate argument being made is that both should be safe within the same First Amendment protection.

🔮 What are the implications of this case? Why is it important?

The Supreme Court decision will set standards for what free speech looks like in the digital age.

Legal experts have speculated that if the court rules the laws are unconstitutional, they could provide alternatives. But if they rule that the laws uphold social media companies’ First Amendment rights completely, Florida and Texas residents would essentially have separate social media feeds from the rest of the country. The ruling could also usher in similar laws in other states.

Carl Szabo, the general counsel for NetChoice, said that if the laws are approved then “Americans across the country would be required to see lawful but awful content.”