What’s at stake in SCOTUS Florida, Texas social media cases

On Monday, the Supreme Court began hearing oral arguments in two cases that have the potential to remake online speech in America by weighing how the First Amendment applies to social media platforms.

In Moody v. NetChoice and NetChoice v. Paxton, the justices will decide the constitutionality of a pair of laws that effectively strip tech companies’ agency to determine whose content they can restrict. Legal experts on both sides are calling them the two most important free-speech cases of this generation.

Both involve a duo of key Big Tech lobbying groups—NetChoice and the Computer & Communications Industry Association. They’re suing to block laws that two conservative states, Florida and Texas, passed in the aftermath of President Donald Trump’s 2021 ban from various social media platforms following the January 6 insurrection.

By this point, conservatives were already furious at Big Tech, arguing social media has evolved into the modern era’s public square, and that means Big Tech shouldn’t get to decide who is or isn’t allowed to stand in the middle yelling stuff. They contend it’s their viewpoints that were, and still are, being censored for political reasons, while the tech companies have countered that the content they made a pattern of posting to their accounts violated the platforms’ terms of service—and as responsible custodians of the modern era’s public square, they have a duty to protect the public from that sort of speech.

Decisions to suspend Trump and others marked a final straw of sorts, pushing not just the former president to launch his Truth Social and a raft of other tech entrepreneurs to found rival platforms catering to deplatformed members of the right (Gab, Parler, Rumble, Gettr), but also conservative politicians to hatch legal schemes they hoped could mandate their side’s reinstatement.

Texas’s and Florida’s laws are two examples of that, and both restrict whose content social media companies are allowed to remove from their platforms in those jurisdictions. The Florida law combats what Governor Ron DeSantis called “tech totalitarianism” by requiring platforms to keep accounts active for political candidates in the lead-up to an election. The Texas law empowers residents to sue only the largest social media platforms (those with more than 50 million users) if they believe they’ve been banned or censored without justification. Addressing the differences, one judge—Andrew Oldham—summed them up this way in his lower court ruling now being appealed by Big Tech: The Florida law “prohibits all censorship of some speakers,” while Texas law “prohibits some censorship of all speakers.”

The Supreme Court’s decision, expected sometime in June, is poised to be the American judicial system’s most critical First Amendment ruling since entering the internet age. If the justices were to decide that tech platforms cannot moderate their content, or large swaths of it, the industry would essentially be remade overnight into the Elon Musk mold for X: Users would indeed be exposed to more opinions, but among them would come more of humanity’s worst online. And as Musk has learned the hard way on X as advertisers and users flee, this could impact the platforms’ bottom lines in a significant way.

Last week Carl Szabo, NetChoice’s vice president and general counsel, explained to Fast Company that for the tech companies, a court loss would effectively mean “turning off their content moderation systems” in order to comply, yielding a platform full of what he called “really horrible, vile content.”

Conservatives argue it’s a trade-off, since what they’re up against is essentially a conspiracy where the government can indirectly silence their side by using social media companies as puppets to deplatform critics—with each site dominating a separate key type of speech (Facebook and communication between friends, YouTube and videos, X and public statements by companies or officials). Legal historian and Columbia Law professor Philip Hamburger put it this way today in the Catholic publication First Things: The government used to have to prosecute individuals for bad public speech; now, Meta or YouTube bans them automatically, and this 180-degree turn requires “suppressed individuals” to beat their government in court to escape censorship. The government’s qualified immunity in most of these cases is very hard to beat, leading to a predicament Hamburger describes as “Heads, government wins; tails, you lose.”

The government-Big Tech conspiracy is one lever behind both the Texas and Florida laws. It also explains conservatives’ fear of these platforms; it’s a transitive fear underpinning what they believe is at stake. That is why such a motley crew is mobilizing before the country’s highest court, from MAGA Republicans to constitutional scholars to people like the Glengarry Glenn Ross and American Buffalo playwright David Mamet.

Once liberal, Mamet began defecting to the right more than a decade ago. (In 2011, he shared his newfound hatred of paying taxes, admitted he’d stopped reading the newspapers, and said free speech meant his right to jab a stick into progressives’ eyes, explaining: “Of course I’m alienating the public! That’s what they pay me for.”) A few weeks ago, Mamet wrote an amicus brief that has started making the rounds online. It informs the Supreme Court that he, “Pulitzer Prize winning playwright, author, and filmmaker” David Mamet, has “prepared a metaphorical short story that will provide the Court with needed perspective on the issues in this case.” Its only character is a male pilot who got lost while flying, causing a navigational problem, because nothing outside the window matched what he was seeing on his map.

Looking below, says Mamet, this completely fictional guy saw “a free, prosperous, and good country, in which there was little actual poverty, scant racism, and no ‘systemic’ racism, where minorities and women, rather than being discriminated against were treated preferentially.” Above a copyright notice for his story, he then concludes: “A pilot in this situation might conclude he’d simply picked up the wrong map. But what if the government and its privileged conduits prohibited him from choosing another?”

On Monday, the Supreme Court began hearing oral arguments in two cases that have the potential to remake online speech in America by weighing how the First Amendment applies to social media platforms.

In Moody v. NetChoice and NetChoice v. Paxton, the justices will decide the constitutionality of a pair of laws that effectively strip tech companies’ agency to determine whose content they can restrict. Legal experts on both sides are calling them the two most important free-speech cases of this generation.

Both involve a duo of key Big Tech lobbying groups—NetChoice and the Computer & Communications Industry Association. They’re suing to block laws that two conservative states, Florida and Texas, passed in the aftermath of President Donald Trump’s 2021 ban from various social media platforms following the January 6 insurrection.

By this point, conservatives were already furious at Big Tech, arguing social media has evolved into the modern era’s public square, and that means Big Tech shouldn’t get to decide who is or isn’t allowed to stand in the middle yelling stuff. They contend it’s their viewpoints that were, and still are, being censored for political reasons, while the tech companies have countered that the content they made a pattern of posting to their accounts violated the platforms’ terms of service—and as responsible custodians of the modern era’s public square, they have a duty to protect the public from that sort of speech.

Decisions to suspend Trump and others marked a final straw of sorts, pushing not just the former president to launch his Truth Social and a raft of other tech entrepreneurs to found rival platforms catering to deplatformed members of the right (Gab, Parler, Rumble, Gettr), but also conservative politicians to hatch legal schemes they hoped could mandate their side’s reinstatement.

Texas’s and Florida’s laws are two examples of that, and both restrict whose content social media companies are allowed to remove from their platforms in those jurisdictions. The Florida law combats what Governor Ron DeSantis called “tech totalitarianism” by requiring platforms to keep accounts active for political candidates in the lead-up to an election. The Texas law empowers residents to sue only the largest social media platforms (those with more than 50 million users) if they believe they’ve been banned or censored without justification. Addressing the differences, one judge—Andrew Oldham—summed them up this way in his lower court ruling now being appealed by Big Tech: The Florida law “prohibits all censorship of some speakers,” while Texas law “prohibits some censorship of all speakers.”

The Supreme Court’s decision, expected sometime in June, is poised to be the American judicial system’s most critical First Amendment ruling since entering the internet age. If the justices were to decide that tech platforms cannot moderate their content, or large swaths of it, the industry would essentially be remade overnight into the Elon Musk mold for X: Users would indeed be exposed to more opinions, but among them would come more of humanity’s worst online. And as Musk has learned the hard way on X as advertisers and users flee, this could impact the platforms’ bottom lines in a significant way.

Last week Carl Szabo, NetChoice’s vice president and general counsel, explained to Fast Company that for the tech companies, a court loss would effectively mean “turning off their content moderation systems” in order to comply, yielding a platform full of what he called “really horrible, vile content.”

Conservatives argue it’s a trade-off, since what they’re up against is essentially a conspiracy where the government can indirectly silence their side by using social media companies as puppets to deplatform critics—with each site dominating a separate key type of speech (Facebook and communication between friends, YouTube and videos, X and public statements by companies or officials). Legal historian and Columbia Law professor Philip Hamburger put it this way today in the Catholic publication First Things: The government used to have to prosecute individuals for bad public speech; now, Meta or YouTube bans them automatically, and this 180-degree turn requires “suppressed individuals” to beat their government in court to escape censorship. The government’s qualified immunity in most of these cases is very hard to beat, leading to a predicament Hamburger describes as “Heads, government wins; tails, you lose.”

The government-Big Tech conspiracy is one lever behind both the Texas and Florida laws. It also explains conservatives’ fear of these platforms; it’s a transitive fear underpinning what they believe is at stake. That is why such a motley crew is mobilizing before the country’s highest court, from MAGA Republicans to constitutional scholars to people like the Glengarry Glenn Ross and American Buffalo playwright David Mamet.

Once liberal, Mamet began defecting to the right more than a decade ago. (In 2011, he shared his newfound hatred of paying taxes, admitted he’d stopped reading the newspapers, and said free speech meant his right to jab a stick into progressives’ eyes, explaining: “Of course I’m alienating the public! That’s what they pay me for.”) A few weeks ago, Mamet wrote an amicus brief that has started making the rounds online. It informs the Supreme Court that he, “Pulitzer Prize winning playwright, author, and filmmaker” David Mamet, has “prepared a metaphorical short story that will provide the Court with needed perspective on the issues in this case.” Its only character is a male pilot who got lost while flying, causing a navigational problem, because nothing outside the window matched what he was seeing on his map.

Looking below, says Mamet, this completely fictional guy saw “a free, prosperous, and good country, in which there was little actual poverty, scant racism, and no ‘systemic’ racism, where minorities and women, rather than being discriminated against were treated preferentially.” Above a copyright notice for his story, he then concludes: “A pilot in this situation might conclude he’d simply picked up the wrong map. But what if the government and its privileged conduits prohibited him from choosing another?”