The First Amendment was designed to prevent speech suppression, Florida Solicitor General Henry Whitaker told the Supreme Court at oral argument Monday. He defended the state’s law seeking to restrict how private social media companies moderate their content.
But Justice Brett Kavanaugh observed that the Florida lawyer left out three key words from what the First Amendment is worried about: “by the government.” That is, the constitutional amendment is concerned with governmental rather than private suppression.
The exchange came against the backdrop of state laws featured in back-to-back Supreme Court hearings Monday — one from Florida and another from Texas. Both emanate from conservative censorship complaints and Donald Trump’s getting kicked off social media after the Jan. 6 attack at the Capitol.
Justice Samuel Alito embraced the censorship narrative, musing about “Orwellian” private conduct. That led Kavanaugh to respond to his fellow Republican-appointed justice that when Kavanaugh thinks of “Orwellian,” he thinks of “the state” rather than the private sector, such as when the government takes over media, as has happened in other countries. Kavanaugh cited a prior precedent for the proposition that “we don’t want to be that country.”
What sort of country we are when it comes to social media and speech could hinge on the high court’s ruling in this crucial dispute, expected by summer.
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