Justices question Texas and Florida efforts to restrict social media companies

Although a majority appeared to think the states went too far, the ultimate resolution — particularly as to the Florida law — could be more complicated.

Texas Attorney General Ken Paxton, third from right, after arguments at the U.S. Supreme Court on Feb. 26, 2024.

On Monday, over nearly four hours of oral arguments, the justices of the U.S. Supreme Court debated whether Florida and Texas can — with slightly different laws — mandate that social media companies change their content moderation policies because conservative leaders in both states have decided that some of the largest platforms mistreat conservatives on their platforms.

At the end of the arguments, a majority of the justices appeared to agree that, at a minimum, the laws could not be applied to the social media companies’ expressive activities, specifically, when they are taking actions that amount to editorial discretion. However, it was also clear, particularly as to the Florida law, that the resolution of the cases could be more complicated than that.

Four justices — Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh — most strongly pushed back against the laws, with Roberts explicitly questioning whether the states weren’t on the wrong side of the First Amendment with their claims and Kavanaugh repeatedly pressing back on anyone, including other justices, who tried to argue that private entities making private business decisions about content are ever engaged in “censorship.”

At one point, Sotomayor told Texas Solicitor General Aaron Nielson, “I have a problem with laws like this that are so broad that they stifle speech just on their face.”

This is the Supreme Court, though, where it takes five justices to reach a majority, so four is not enough. Sotomayor’s succinct and basic point did seem to get lost in discussion of hypothetical applications of the laws that were clearly targeted at specific companies; in discussion of spillover effects on the federal immunity provision for “interactive computer services” known as Section 230; and, because of course, George Orwell. (Also, the Tide Pods challenge, perhaps the dumbest internet meme of 2018, still came up three times in oral arguments on Monday, if you want to know where we’re at.)

Justices Clarence Thomas and Sam Alito were most sympathetic to the laws.

“They are censoring as far as I can tell, and I don't know of any protected speech interests in censoring other speech, but perhaps there is something else,” Thomas said early on to Florida Solicitor General Henry Whitaker.

When U.S. Solicitor General Elizabeth Prelogar, representing the Biden administration, told Alito that ultimately the terminology — whether we use the word “censorship” to describe the actions of these companies or “content moderation” — doesn’t matter so much as who is doing the action and whether they are engaged in expressive conduct, Alito shot back, “[T]he particular word that you use matters only to the extent that some may want to resist the Orwellian temptation to recategorize offensive conduct in seemingly bland terms.”

When Kavanaugh got his turn, however, he responded: “When I think of ‘Orwellian,’ I think of the state, not the private sector, not private individuals. Maybe people have different conceptions of ‘Orwellian,’ but the state taking over media, like in some other countries.” Referencing a past decision (also involving a Florida law) that newspapers can’t be required to publish politicians’ replies to critical editorials, he continued, “[T]he Court made clear, that we don't want to be that country.”

Alito held strong in the second argument, telling Paul Clement — representing NetChoice on behalf of the social media companies — that the internet and social media companies aren’t like newspapers and asking him, “[L]et's say YouTube were a newspaper, how much would it weigh?”

That leaves three votes in question: Justices Neil Gorsuch, Amy Coney Barrett, and Ketanji Brown Jackson.

Gorsuch was focused extensively on Section 230 — though not alone in doing so — and whether a ruling here that the companies are engaged in expressive activity and that the laws are unconstitutional would mean they lose immunity (or have some effect on their immunity claims) under Section 230.

Barrett was focused, particularly as to the Florida law, on the scope of the facial preliminary injunction and whether it would be proper to affirm that injunction if there are other possible applications of the law beyond traditional social media companies that would be constitutional.

Jackson expressed concerned with the scope of the injunctions, repeatedly asking why the courts shouldn’t be examining the constitutionality of the laws at a greater level of specificity regarding particular functions of the various platforms rather than just, for example, “as applied to Facebook.”

At the end of the arguments, it appeared likely that the preliminary injunction blocking enforcement of the Texas law — which targets a narrow group of very large social media companies but specifically bars them from viewpoint-based content moderation decisions — will remain in effect while that case proceeds, a decision reversing the U.S. Court of Appeals for the Fifth Circuit but in agreement with the district court in the case.

When Nielson claimed that what the social media platforms allegedly want to do — by Texas’s telling — is “not the First Amendment,” Roberts was not having it.

“Well, the First Amendment doesn't apply to them,” the chief justice said. “The First Amendment restricts what the government can do, and what the government's doing here is saying, ‘You must do this, you must carry these people; you've got to explain if you don't.’ That's not the First Amendment.”

As to the Florida law, however, the arguments — which were first — quickly got stuck on this question about the scope of the law. Although Florida lawmakers and Florida Gov. Ron DeSantis made clear they had a similar target to Texas with their law, the broad drafting of the legislation has left it potentially covering a much broader group of entities. There was discussion on Monday of whether the law would apply to Etsy, Venmo, Gmail, Uber, and other platforms. Because of that, the argument went, it is possible the law might not be invalid on its face — meaning, there could be enough constitutional applications of it that only challenges to specific applications of the law could succeed.

It was a truly unusual posture: Both the district court and U.S. Court of Appeals for the Eleventh Circuit blocked the Florida law from going into effect based on arguments over what everyone agrees is the focus of the law, but now several justices were focused on the fact that the law is written so broadly that maybe it also regulates entities that don’t engage in speech. And while Whitaker argued that the key platforms — think Twitter/X, YouTube, and Facebook — are not engaged in speech either, that was, aside from the Section 230 discussion, mostly a losing argument in front of the justices on Monday.

Instead, the argument in the Florida case ended up substantially focused on what the court should do if a majority of the justices decide the law very well might be unconstitutional as to the social media companies who were the target of the law — but also decide that the law is written so broadly that it likely has some constitutional applications as well.

And though Clement argued for NetChoice that the Florida law was nonetheless unconstitutional on its face at least as to a preliminary injunction and particularly in light of the harsh financial penalties allowed under Florida’s law, Prelogar ultimately told Barrett, “[I]f you think that those issues are properly in this case, I don't think the Court has received the briefing, frankly, to try to take a stab at resolving them, but it seems like it would be a reasonable thing to send it back for further factual development and consideration by the lower courts.”

In other words, and as both Clement and Prelogar — and some justices — said, this might very well have just been the first round for these cases and laws at the Supreme Court.