The Supreme Court Could Save the Internet (Again)

The Supreme Court recently decided on its first case related to Section 230 of the Communications Decency Act, ultimately leaving the law in place and preserving an important legal protection that is crucial to the function of the modern Internet. Now the court could once again come to the rescue of online services and their users, as it announced on September 29, 2023 that it will review laws from Florida and Texas that dictate how social media platforms can moderate content.

Both the Florida law, S.B. 7072, and the Texas law, H.B. 20, went into effect in 2021. The 11th Circuit Court of Appeals upheld a lower court’s injunction against parts of Florida’s law, while the 5th Circuit Court of Appeals allowed similar provisions in Texas’s law to stay in place. Florida’s S.B. 7072 fines social media platforms $250,000 per day for de-platforming any political candidate running for statewide office and $25,000 per day for de-platforming any other political candidate and allows Floridian users to sue social media platforms for censoring or de-platforming them. Meanwhile, Texas’s H.B. 20 prohibits large social media platforms from “censoring” users, defined as “to block, ban, remove, de-platform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression,” and allows Texan users to sue platforms.

Florida and Texas’s laws arose out of Republicans’ claims that social media companies, particularly large ones, are biased against conservatives, unfairly censoring conservative content and de-platforming conservative users. Members of Congress have introduced similar legislation at the federal level, though Congress has not passed any of these bills. Legislators have taken these actions despite a lack of reliable evidence of systemic anti-conservative bias.

Technology industry groups NetChoice and the Computer and Communications Industry Association (CCIA) challenged both laws in court, citing First Amendment concerns. Social media platforms are private actors with First Amendment rights to freedom of expression and association, which includes the freedom to disassociate themselves from certain forms of speech—such as speech that violates a platform’s terms of service—and individuals who regularly engage in those forms of speech. Thus, by punishing social media platforms for removing certain content or users, NetChoice and CCIA argue that the Florida and Texas state governments are violating those platforms’ First Amendment rights.

Outside of constitutionality, critics of Florida and Texas’s laws have other concerns, including how the laws could change how social media works for the worse. First, by allowing users to sue social media companies for censoring or de-platforming them, both laws would significantly increase companies’ legal fees. Even if social media companies end up winning most of these cases—which is likely—that is still a significant amount of money those companies can no longer spend on areas that would provide greater benefit to users, such as innovation and safety.

Social media platforms would also likely change the way they moderate content to avoid fines and legal battles in Florida and Texas, removing less content that is objectionable but not illegal. This may include forms of content that many users do not want to see on their feeds, such as spam, pornography, violence, disinformation, hate speech, and bullying. It may also rely less on algorithms, which would result in users seeing content that is less relevant to their interests. Alternatively, companies may choose to pass the increased cost of fines and legal fees onto consumers by charging more for their services or charging for services that were previously free.

If the Supreme Court upholds Florida and Texas’s laws, it is likely that more states will pass similar legislation, raising the costs to social media companies even higher than if such laws were confined to only Florida and Texas and impacting even more users. But if the Supreme Court instead strikes down Florida and Texas’ laws, platforms and their users will avoid these negative consequences and other states will hopefully get the message that they cannot dictate how social media platforms moderate content. Governments need to find other ways to solve issues related to online speech.