Policy Backgrounders

Supreme Court Hears Arguments on State Social Media Laws

March 07, 2024

Trusted Insights for What’s Ahead™

The Supreme Court heard arguments in two cases focusing on social media content moderation arising from laws that Texas and Florida passed in 2021. Industry groups are challenging the laws for interfering with the platforms’ First Amendment protection for editorial discretion.

• The laws each impose requirements that social media companies provide individual justifications for each content moderation decision; Florida’s law additionally prohibits platforms from “deplatforming” (banning) candidates for political office or giving content they (or their campaigns) place on a social media site a lower priority compared to other content.
• Pointing to a lack of clear evidence in the record, some Justices indicated they would likely avoid a sweeping decision, which could also mean rejecting that idea that social media falls neatly into Supreme Court precedents related to newspapers or other types of cases on free speech. Instead, the Justices insisted on better defining the relevant terms and scope of activities that these laws would impact.
• Some Justices also focused on what they see as inconsistent arguments from industry in several First Amendment cases and cases relating to Section 230 of the Communications Act, enacted in 1996. In those cases, industry has argued that their content curation algorithms are their own protected speech but have also argued that the algorithms are merely “neutral tools” to disseminate third-party speech.
• A decision is expected by June 2024. It appears likely that the Court will remand the cases for further consideration in the lower courts, asking those courts to build a stronger greater evidentiary record and providing instructions as to the scope of social media activities that are protected under the First Amendment – an outcome the US Solicitor General supports.