Texas and Florida Social Media Laws Argued at the Supreme Court

Today we at NTUF live-tweeted (live x-posted?) the Supreme Court oral arguments in the social media cases Moody v. NetChoice LLC, U.S. No. 22-277, and NetChoice LLC v. Paxton, U.S. No. 22-555. 

We filed in both of the cases, explaining that the Texas and Florida social media regulatory laws violate the First and Fifth Amendments. Specifically, we called for a 1980 case, PruneYard Shopping Center v. Robins, to be overturned as it is out of step with modern case law.  

The NetChoice cases were never fully consolidated, meaning that there were actually two sets of arguments today, back-to-back. Henry Whitaker represented Florida, Aaron Nielson represented Texas, and United States Solicitor General Elizabeth Prolegar appeared specially as amicus curiae (friend of the court) to provide the federal government’s views on the cases. Paul Clement represented NetChoice. We’ll just take the argument summation as “the states” and “NetChoice” and “the Solicitor General” for clarity. 

Defending the laws, the states describe social media platforms as the new “digital public square,” with enormous control over the discussion of politics and policy. Texas and Florida argued  that their laws do not implicate the First Amendment at all, because they simply require social media platforms to host speech–what Florida described as “conduct”, not speech, from the social media platforms themselves. The states pointed to times when new technology came on line in the past and the decisions there that held the telegram operators, phone companies, and the like to be “common carriers.” 

In opposition, NetChoice argued that there is a First Amendment right to curate and choose—what they called “editorial control”—over what is presented to users. They point out that there are vast amounts of information given over to the websites that is far too much for a regular user to sift through. That’s why algorithms curate and present information to the users that might be interesting or useful. 

But rather than focusing on this line, the Court spent a third of Clement’s time trying to understand what ancillary aspects of social media–direct messages, email-type programs, and the like—also could or could not be regulated by the states. What could have been a quick set of questions asking if the states could regulate generally to prevent discriminating business practices opened up a line of questioning about the scope of the challenge, how much and what was preserved in the case arguments below, and whether there needed to be trials or certified questions sent to the Florida and Texas Supreme Courts to figure out how the law worked. 

The Solicitor General argued that the First Amendment protects the social media platforms’ efforts to moderate the content on their sites, although that does not mean that the platforms can never be regulated. The Solicitor General attempted to also draw a line between all the things the cases could be about–regulating comments on Etsy or regulating direct messages on Uber or regulating Gmail–and what was actually argued below by the states. In the courts below, both Texas and Florida made it clear that their laws are about regulating the “big” social media companies – especially Twitter (now X) and Facebook. The legislative histories, signing statements of the governors, etc. all focused on regulating the supposed political biases of the social media companies, and the Solicitor General wants the states should be held to what they argued below, not making new arguments in the Supreme Court.

Later this term, the Court will hear about alleged federal government pressure on social media companies to stop “misinformation” on things the government opposed. The justices also seem worried about Section 230, net neutrality, and a host of other issues lately that interrelate to these cases.

It seems that Chief Justice Roberts and Justice Kavanaugh think that the Texas and Florida laws went too far. Justices Gorsuch, Alito, Thomas expressed concern that the social media companies have it both ways: they are publishers when they use the First Amendment as a shield, but Section 230 keeps them from being held accountable as “publishers” of what their users post. Justices Barrett and Jackson are in play, asking practical and line-drawing questions. Justices Sotomayor and Kagan appeared skeptical about making a website carry conservative voices.