It was a four-plus-hour marathon session of oral argument over social media regulation at the Supreme Court on Monday, February 26. Are the laws of Texas and Florida passed to protect users from the censorious folks who work for Facebook, YouTube, and the other social media giants unconstitutional? Protecting the people from companies who seem to take great sport at demonetizing or canceling conservatives may itself violate the First Amendment. The Justices seemed to agree on one thing during the arguments – this case is far from an ideal candidate to weigh and decide the many essential issues present.
Justice Clarence Thomas was quick out of the gate with a discussion about how the problem with this case is that it is a “facial challenge.” This concerns the nature of the challenge to the law. NetChoice – the organization representing the tech industry in this matter - didn’t wait until Florida or Texas acted to enforce the new rules or challenge regulations developed to implement them. Instead, it ran to court and argued the law is unconstitutional on its face – effectively, that there is no way to uphold the law in a constitutional manner, so it must be stricken down. Thomas and others returned to this point, hinting they may wait for a better case to issue a broad ruling on the issues present.
Facial Challenges By Facebook
Justice Ketanji Brown Jackson said, “Because my understanding is that, to strike down this statute as facially unconstitutional, we would have to conclude that there’s no possible way for this law to govern these entities and their conduct.” Paul Clement, attorney for the companies challenging the law said “every application of this statute unconstitutional.” Justices reckoned with whether the companies were “common carriers” like phone companies, or more like newspaper publishers. Or were they some newer things the history is not helpful to describe?
The cases are Moody v. NetChoice, LLC, the Florida case, and NetChoice, LLC v. Paxton, out of Texas. Netchoice is a trade association representing online platforms that argues against increased regulation and liability for Facebook, Yahoo, Google, and the rest of the big tech who’s who. They sued the states for passing laws restricting who the platforms could ban and required them to post all sorts of information about their content regulation policies. Neither state has implemented its new laws; both are held up while this case is decided.
Editorial Choices vs. Common Carriers
As Amy Howe summarized for SCOTUSblog, “The laws contain provisions that limit the choices that social media companies can make about which user-generated content to present to the public, and they also contain provisions that require social media platforms to provide individualized explanations to users about the platforms’ editorial choices.”
The Supreme Court took the cases to resolve two questions,
“1. Whether the laws’ content-moderation restrictions comply with the First Amendment.
“2. Whether the laws’ individualized-explanation requirements comply with the First Amendment.”
This case only concerns the injunctions preventing the laws from being implemented. We should expect lots more fighting over them if the Supreme Court does anything other than reject the regulation attempts outright. Justice Brett Kavanaugh asked the Facebook lawyer what would happen if they let the law be enforced while the case made its way back up through the courts. What would occur in the ensuing year? He said some companies may decide, just for Florida users, “… let’s do only puppy dogs until we can get this straightened out.”
The court is expected to issue a ruling in this case by June.
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