Censorship or free speech? Supreme Court likely to decide on 'momentous' question

Republican governors looked to limit the ability of social media companies to police content, but the Supreme Court could rule in the companies' favor.

A photo illustration shows a concrete column from the Supreme Court with a microphone atop it.
Photo illustration: John Custer for Yahoo News; photos: Getty Images (2)

Social media companies have been pilloried by Republicans for taking down content or suspending accounts, or simply for restricting the spread of some information.

But the Supreme Court is set to hear a pair of cases in its next term — NetChoice v. Moody and NetChoice v. Paxton that could undercut the GOP’s complaints.

Despite its conservative majority, the Supreme Court could find that social media companies have free speech rights too. If so, it would rule that when the platforms restrict, fact-check or take down content, this is constitutionally protected speech and the government cannot interfere, which is the view of many legal experts.

“The ruling will be momentous,” wrote Clay Calvert, a First Amendment expert at the American Enterprise Institute.

How we got here

This issue has been winding its way toward the Supreme Court for a few years, after Republican-controlled state legislatures in Florida and Texas tried to crack down on social media companies in 2021, following the suspension of then-President Donald Trump from Facebook and Twitter in the wake of the Jan. 6 Capitol riot.

In Florida, Gov. Ron DeSantis signed a bill in May 2021 that prevented major social media companies from suspending or deleting the accounts of politicians in the state. Companies were also barred from restricting the spread of information by or about politicians.

“If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable,” DeSantis said.

Florida Governor Ron DeSantis speaks at an outdoor campaign stop.
Florida Gov. Ron DeSantis at a campaign stop in Dyersville, Iowa, on Aug. 24. (Al Drago/Bloomberg)

A federal court in Florida blocked the Florida law on First Amendment grounds. But a few months later, Republicans in Texas passed a similar law. GOP Gov. Greg Abbott said the law “protects Texans from wrongful social media censorship.”

As in Florida, a federal court rejected the Texas law. “Social media platforms have a First Amendment right to moderate content disseminated on their platforms,” the judge wrote.

But then, in federal appeals courts, the two laws took different paths. The Florida law was rejected by the 11th Circuit, but the Texas law was upheld by the Fifth Circuit. “The platforms are not newspapers. Their censorship is not speech,” wrote Fifth Circuit Judge Andrew Oldham.

The Supreme Court put off hearing the two cases this past year and asked the Biden administration to weigh in. Two weeks ago Solicitor General Elizabeth Prelogar did so, arguing that “the platforms’ content-moderation activities are protected by the First Amendment.”

The Supreme Court is now likely to grant a hearing for the two cases, which it would announce this fall.

Five Supreme Court justices sit and four stand behind them as they gather for a group portrait.
The Supreme Court justices gather for a group portrait in October 2022. (Evelyn Hockstein/Reuters)

Are social media companies censoring conservatives?

Rep. Jim Jordan of Ohio is one of the Republican Party’s top voices for the claim that the Biden administration has censored conservatives.

“The Biden [administration] abused its powers to coerce Facebook into censoring Americans,” Jordan claimed recently.

Jordan has often cited a ruling in Louisiana on July 4 by federal Judge Terry Doughty, who decried what he described as “a federal regime of mass censorship” targeted at conservatives.

Critics say Doughty’s ruling combines, or conflates, two issues: the decisions by social media companies to leave up, take down or restrict information, and attempts by government officials to persuade these companies to do so.

Read more from Yahoo News: GOP claims government ‘coerced’ Facebook to take down content

Doughty found that Biden officials “coerced” the social media companies to remove or restrict information they didn’t like, much of it related to the COVID-19 pandemic in 2021. Coercion — which, in this sense, means the government threatened retaliation if its requests to social media were not met — is against the law.

The same Fifth Circuit that upheld the Texas law will determine whether the Biden officials were engaged in coercion, and that issue may also head to the Supreme Court.

Representative Jim Jordan sits during a hearing.
Rep. Jim Jordan at a hearing on July 26. (Al Drago/Bloomberg)

But the social media companies can — and, under the First Amendment, must — decide for themselves what their rules are and how to enforce them, conservative attorney Paul Clement argued for the companies.

“Just as the government cannot compel a newspaper to run content, it cannot ... compel a private parade organizer to include a group whose values it does not share,” Clement wrote in a brief to the Supreme Court.

“Those principles equally apply to a private social media company’s editorial judgment about what content to disseminate (or not to disseminate) via its website, applications, and online services.”

Tech companies hopeful the Supreme Court rules in their favor

Nicole Saad Bembridge, an attorney for the internet companies’ trade association NetChoice, told Yahoo News that a Supreme Court ruling in July — which upheld a web designer’s right to refuse to design a website for a gay couple’s wedding, on free speech grounds — was “helpful foreshadowing for how the court might rule” in support of the social media companies.

And Calvert, the First Amendment expert, argued that a ruling supporting the independence of the social media companies would do a lot to solve the problem of government officials trying to lean on them, as both the Biden and Trump administrations have done.

“It would — perhaps, ironically — finally give social media platforms solid legal precedent to forcefully push back” on requests from government officials to take down content they don’t like, Calvert wrote.