Social Media Censorship and the Florida HB 7072 and Texas HB 20 Laws: Why Do They Matter? How Social Media Platforms Learned to Educate

The laws at the center of the fight, Florida’s SB 7072 and Texas’ HB 20, were created in the name of countering what conservative legislators have labeled censorship by social media platforms. Texas forbids discrimination on the basis of viewpoint, whereas Florida suggests platforms moderate content in a consistent manner. NetChoice is an industry group that counts many internet giants among its members, and challenged the laws for violating the First Amendment. NetChoice argued that the laws did not respect the rights of platforms to exercise editorial discretion in what they show on their sites.

On the average day, some 95 million pictures are posted on Instagram, along with 34 million videos on TikTok and hundreds of millions of tweets. Some go viral, most don’t. Some percentage are taken down for violating the content rules on the platforms. The rules of social media have become so important that they are now the most important speech regulations on the planet, policing what can and cannot be said online.

The laws were about content moderation practices of major social media platforms. The justices frequently name-checked the companies that aren’t hosting users’ views in the arguments.

“I think that they were hoping that they could get rid of this and move on to a new issue,” Hans said of NetChoice. “And that’s not going to happen based on what I heard today.”

In bringing the facial challenges, Hans said, NetChoice took a gamble that it could discourage similar laws in other states. It wasn’t a bad bet, he said, but it doesn’t seem to be paying off.

The Challenge that Social Media Transparency Can Face: The Case of Jaffer v.s. Grimmelmann at the Cornell Law School

The laws don’t simply ban (allegedly) discriminatory moderation; they also implement requirements that sites disclose aspects of how they moderate. Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, noted in an emailed statement that the justices did not spend much time discussing these transparency requirements. He said how the court addresses the provisions could determine whether social media transparency laws can be constitutional.

“That is a potential path that this case could travel,” Lawrence Walters, general counsel at the Woodhull Freedom Foundation, said during a press conference after the arguments. “I think the justices really wanted to explore what all their options were before rendering what could be a historic landmark decision.”

The justices might choose to remand the cases to the lower courts to get a more developed record, which would allow the cases to reach the top court at a later stage, with more discovery and understanding of how they would apply in different situations.

The justices have a problem because they spent a lot of time trying to figure out whose fault it was and what they should do about it, according to James Grimmelmann, professor at Cornell Law. “If I had to guess, I would predict that the court will issue relatively narrow rulings that make it clear that the most restrictive portions of the state laws are unconstitutional, and then let litigation play out to determine whether other provisions of these laws — or of other future laws — are constitutional.”

Part of the reason the court struggled with the limits of the law was because the factual record of the cases was not very developed. NetChoice sought injunctions to stop the laws from taking effect.

The court may have to develop a standard to say which companies are covered by laws like Texas and Florida, even if they aren’t necessarily related to delivery trucks or telephone companies. One option would be to explain that the company’s expressive nature makes them eligible to exercise editorial discretion.

“I think what you see in the discussion is the justices are thinking, well, not all potentially covered entities are made equal,” said Gautam Hans, associate director of the First Amendment Clinic at Cornell Law School. “And maybe we don’t want to say that there’s no context in which this law could ever be validated. Perhaps we want to let this play out a bit more.

NetChoice argued that the social media laws are unconstitutional because it made afacial challenge against them. An “as applied” challenge, on the other hand, would mean that the laws are unconstitutional only as applied to a specific set of companies or circumstances.

During Monday’s Supreme Court arguments in a pair of consequential social media cases, the justices prodded for ways they could rule without giving either side everything they asked for.