Texas and Florida Want the Supreme Court To Bless Their Unconstitutional Social Media Laws

Both states are trying to force tech companies to platform certain sorts of speech. 

The Supreme Court heard oral arguments today in two pivotal cases concerning social media. These cases—NetChoice & CCIA v. Paxton and Moody v. NetChoice and CCIA—are of huge importance for the future of free expression and free association online.

"The fate of free expression on the internet is largely at stake," said Lawrence Walters, general counsel with the Woodhull Freedom Foundation, at a Monday afternoon press conference. It would be "mass chaos…if the states were allowed to enforce these rules."

The challenges were brought by tech industry groups NetChoice and the Computer and Communications Industry Association (CCIA) against first-of-their-kind laws in Florida and Texas. The tech groups were also joined today by U.S. Solicitor General Elizabeth Prelogar, who participated on their behalf.

Today's arguments touched on everything from common carrier requirements and public accommodations laws to terrorism, Section 230, antitrust law, net neutrality, newspapers, and much more. But at the crux of this matter is a simple question of whether the government can compel speech.

The Texas and Florida Laws

In Texas, the state declared large social media platforms "common carriers" and forbade them from viewpoint-based blocking or suppressing of content. The law "is blatantly unconstitutional and inconsistent with federal law," wrote Reason Senior Editor Jacob Sullum when it first passed in 2021. Texas Gov. Greg Abbott justified the law by saying social media platforms disproportionately silence conservatives—a contention not borne out by evidence. But even if true, tech companies would be well within their rights to do so. The First Amendment means the government can't make you associate with speech you don't want to associate with. It can't force a baker to make a pro–gay marriage cake and it can't force a website to carry pro-Trump comments, and so on.

The Florida law, also passed in 2021, says large social media platforms can't reject speech by any "candidate for office," can't suppress or block content "by or about" political candidates, and can't "censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast." This is also blatantly unconstitutional, for the same reasons that apply to the Texas case. The First Amendment doesn't just prohibit government authorities from censoring speech but also from compelling speech.

Both laws "violate the First Amendment rights of private social media platforms, which build user bases by facilitating and moderating content in ways the users find beneficial," Max Gulker, a senior policy analyst with the Reason Foundation (the nonprofit that publishes this website), pointed out last December. "Supporters of the state laws…repeatedly lose track of this distinction." (For a deeper look at arguments against these laws, check out the amicus brief filed by the Reason Foundation and several other nonprofit groups.)

The NetChoice and CCIA challenges to both laws have been winding their way through the federal court systems for years and, today, finally landed before the U.S. Supreme Court.

Today's Arguments

Representatives from NetChoice and CCIA appeared in good spirits at a post-court press conference, where they rehashed some of the high-level arguments against the Texas and Florida laws.

"The state has no business protecting individual viewpoints or picking winners and losers in the marketplace of ideas," said Matt Schruers, CCIA president and CEO. He noted that in court, both states desperately attempted to "reframe the editorial choices of websites as conduct" so as to try and escape First Amendment protections (which is something we see all too frequently with laws aimed at social media companies).

"The government cannot violate the First Amendment, and it especially cannot do so in the name of preserving free speech—that is Orwellian," said Chris Marchese, director of the NetChoice Litigation Center.

He noted that there was a lot of talk during oral arguments about Section 230, a federal communications law that protects social media platforms from some liability for the speech of their users.

But Section 230 questions may distract from the fact that this is a First Amendment case.

"If the law violates [the First Amendment], the 230 [question] is effectively moot since 230 procedurally facilitates 1A," commented Jess Miers, senior counsel with the Chamber of Progress and an adjunct professor at Santa Clara Law, on X (formerly Twitter).

Alas, this is something very hard for people—including, apparently, some Supreme Court justices—to understand. "I'm not really sure how else NetChoice can make this clear," Miers commented after the issue kept coming up again and again. "The Court just doesn't get it."

Good News or Bad News?

Tech policy analysts who oppose the Texas and Florida laws saw some reasons for optimism and some reasons for concern in today's oral arguments.

"An uncomfortably large number of the justices peered down an uncomfortably large number of rabbit holes that, if they fall in, will result in disaster for the platforms and the Internet as a whole," commented Corbin Barthold, internet policy counsel at TechFreedom. (Barthold did a very extensive, real-time rundown of the arguments on X.)

But at least some justices appeared skeptical of Texas' arguments that social media should be regulated like a common carrier that has a legal obligation to serve everyone. For instance, Justice Samuel Alito said Texas was assuming social media companies are like the telegraph or telephone companies, and he doesn't think they are.

"This is crucial—if the Court doesn't buy common carriage, Texas loses," commented Miers.

Kavanaugh also seemed to scoff at the idea that a state can simply say social media companies are common carriers. "Kavanaugh gets it—he knows that you can't just declare common carriage and he's effectively drawing that out here," noted Miers.

"In the Florida case, the justices' questioning recognized the wide variety of services these laws could impact beyond traditional social media platforms," said Jennifer Huddleston, tech policy research fellow at the Cato Institute, in a statement. (Huddleston also posted live updates on X about the oral arguments.) Their questions indicated that "they understood other services subject to the law include marketplaces like Etsy, email services, and even apps like Uber."

Thomas Berry, also a research fellow for the Cato Institute, said, "It appears that a majority of the Court is likely to find that the laws violate the First Amendment, at least when they force traditional social media sites like Facebook and X to change their moderation practices and disseminate speech they want to exclude. As Justice Kavanaugh repeatedly urged, the First Amendment protects private actors against government censorship; it does not allow the government to tell private actors what they must publish. Chief Justice Roberts and Justice [Elena] Kagan also indicated strong skepticism that a website's core editorial functions can ever be commandeered by a state law without violating with the Constitution."

"What is less clear is how the Court will resolve the case," Berry added, noting that  "many options are on the table, including potentially a request to the state courts to lend greater clarity on the scope of the laws."

Vera Eidelman, staff attorney with American Civil Liberties Union's Speech, Privacy, and Technology Project, noted at the press conference that the courts could settle the different laws in different ways.

Miers posted that she thinks the laws are "unlikely to survive" and that the justices will "likely vacate and remand" to the lower courts.

"The court had significant concerns with the scope of these laws, with the compelled speech requirements, with some of the vagueness… so I think the states are going to be in a little bit of trouble here," said Walters.

But is this all just a giant game of Whac-A-Mole? Whatever happens here, noted Walters, "the states are not going to stop trying to regulate the internet."