It is one more episode of the culture wars in the United States—ignited by the super-republican states of Florida and Texas—and could define, neither more nor less, what will be understood by freedom of expression on the Internet, at least in that country.
The Supreme Court began work on the Moody v. NetChoice and NetChoice v. Paxton, which deal with two state laws enacted to eliminate moderation capabilities on social media. If the networks are a public square, anyone has the right to express themselves, no matter how repugnant their perspectives may be (for complaints, later go to court); If they are a media outlet, they can edit their content and choose what they publish (and must take responsibility for what is published).
Installed in the ambiguity of a moderation that does not satisfy either conservatives or progressives, and that has not prevented massacres of Rohingyas, suicides of adolescents or manipulation of presidential elections, social networks caused the weariness of the groups furthest to the right among the Republicans when they closed the accounts of former President Donald Trump, after the assault on the Capitol on January 6, 2021.
The laws HB 20 in Texas and SB 7072 in Florida, passed that same year, were the reaction to the way in which the companies of Mark Zuckerberg and – at that time – Jack Dorsey turned off Trump’s microphone. Who, it is worth remembering, had not invited his followers to go to the Capitol on those platforms, but at a rally in Washington DC. It turns out that the former—and future?—president’s usual tantrums on the platforms had reached extremes in the previous weeks. Trump insisted that he had not lost the elections that Joe Biden had won, with diatribes more striking than that enigmatic “Covfefe” tweet of May 31, 2017.
The truth is that many conservative politicians and media felt canceled – in their words – and the legislatures of Texas and Florida voted on these laws. “Freedom of speech is under attack in Texas,” declared Greg Abbott, the state’s governor, when signing his own. » There is a dangerous move by some social media companies to silence conservative ideas and values. This is wrong and we will not allow it in Texas.”
Both laws were appealed. Since a second instance court declared the Florida one unconstitutional while another allowed the Texan one to stand, a legal loophole was opened that reached the Supreme Court.
Meanwhile, Trump — who created his own social network, Truth — returned to Elon Musk’s renamed X in November 2022 and Meta accounts in January 2024.
What the laws of Texas and Florida say
Texas law prohibits social media platforms from removing content because of a user’s “point of view” or that expressed in a post. And Florida law imposes fines on platforms that ban any candidate for political office in the state from their sites. The New York Times summarized the differences by citing Judge Andrew S. Oldham’s ruling: Florida’s “prohibits all censorship of some speakers,” while Texas’s “prohibits some censorship of all speakers.”
In any case, both take away the platforms’ power to stop content that they consider unacceptable. And, according to lawsuits from tech industry groups like NetChoice and the Computer and Communications Industry Association (CCIA), the rules go further in real life: they make it legal to require companies to host speech discriminatory or the apology of crime.
NetChoice argued that the laws’ requirements amount to forcing a newspaper to publish something it doesn’t want to, for example an editorial against its own line, and argued that this violates the company’s freedom of expression. The states rejected the reasoning: They are only trying to control what happens on platforms they consider a public space within their jurisdiction, they said.
Both parties omitted a particularity of social networks: any speech, be it the apology for kittens or the apology for massacres in schools, is subjected to the same logarithm that is intended to amplify it to get as many users as possible and not let it escape. your attention, in order to earn money. Social networks were designed to create these echo chambers.
The Supreme Court agreed to examine two key aspects: the imperative to publish speeches even if they do not want to (“mandated compliance”) and the transparency requirements. His decision could be known in June, but from the first day of the hearings on Monday, February 26, there is great expectation: a new chapter would open in the interpretation and application of the Constitution (in particular, the First Amendment, which guarantees the freedom of expression) in the digital age.
The only thing that the American media takes for granted is that the highest court will hardly block both laws in their entirety, since the existing division among the members of the court on how to understand the concept of content moderation as opposed to censorship is known.
“These cases are potentially enormous in scope,” Scott Wilkens of the Knight First Amendment Institute told The Hill. ”It will be the first time that the Supreme Court has ruled on the First Amendment rights of social media platforms and, therefore, on the shape and contours of free speech online.”
What the judges said at the hearing
Among what was known about Monday’s conversations, the arguments of Justices Samuel Alito and Brett Kavanaugh, both conservatives, stood out. Alito was the harshest: he asked the representative of the Biden administration why, when a platform removes a publication or closes an account, they talk about “content moderation” instead of “censorship.” The justice said he was concerned about “the Orwellian temptation to recategorize offensive conduct in seemingly anodyne terms.”
Kavanaugh weighed in with a classic interpretation of the First Amendment: it applies only to Hobbesian Leviathan, not to citizenship. “When I think ‘Orwellian,’ I think of the state, not the private sector or individuals,” he said. “Maybe people have different conceptions of ‘Orwellian’.”
Justice Elena Kagan, who is considered moderate to progressive, noted that the tone of the tweets changed a lot since Musk’s purchase in October 2022. “Many Twitter users thought it was very good. And a lot of Twitter users thought it was appalling,” she said. Although the platform was not suitable for the faint of heart before it became .
Judge Ketanji Brown Jackson, of the progressive wing of the court, went straight to the heart of the matter, which will probably take many hearings and who knows if it will be settled: defining whether social networks are like a telephone company, which is not responsible for what what people talk about, no matter how criminal it may be, or like a television channel, which has editorial responsibility. “Today the internet is the public square,” she said. “I understand that these platforms are private companies, but if speech is now occurring in this environment, why wouldn’t there be the same concerns about censorship?”
Alito then intervened showing that it will be difficult for the court to invalidate the laws in their entirety on the basis of free speech: “Does Gmail have the right, under the First Amendment, to delete Tucker Carlson’s accounts? [un presentador pro Trump] o Rachel Maddow [una presentadora anti Trump] If you don’t agree with your views?”
Finally, Kavanaugh asked how laws like those in question could be applied in cases of incitement to crime. The Attorney General of Texas, Aaron Nielson, responded that, instead of establishing, as is happening now, that “anti-al-Qaeda speech is accepted but not pro-al-Qaeda,” he simply set as a criterion “no one here talks about Al Qaeda”.
Culture wars and 2024 campaign
The case is of great importance to the media, and that is why it was covered with live blogging in sites such as The New York Times, CNN and The Washington Post. Additionally, publishing industry organizations such as the Bookstores Association for Freedom of Expression and the Reporters Committee for Freedom of the Press spoke out against the disputed laws. “Supporting Texas and Florida’s intrusion into editorial autonomy would undermine the rights of publishers of all types,” they argued.
This issue came to court in a year of presidential campaigning and exasperation of ideological disputes. In Florida, for example, Governor Ron DeSantis enacted a law in May 2023 that allows the banning of books, mainly on topics such as racism or gender identity. DeSantis promoted that and other regulations, such as restrictions on gender-affirming treatment, when he was trying to compete for the Republican nomination, which he had to abandon.
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