The Supreme Court is exactly where the justices hate to be: driving without a road map.
Monday, the court heard oral arguments in disputes over state laws from Florida and Texas that would limit how social media platforms engage in content moderation. Florida’s law, for instance, bars social media platforms from permanently deplatforming political candidates. Texas’ law bars platforms from restricting content based on the users’ viewpoint.
After more than 3½ hours of oral arguments, the only thing that seems clear is that justices feel ill-equipped about tackling big questions about how the First Amendment functions as applied to online speech and social media platforms. During oral arguments, Justice Amy Coney Barrett expressed her fears about the sweep of the laws “and this is a sprawling statute and it makes me a little bit nervous.” And confusion about what exactly was being argued to the justices abounded. In response to the Florida solicitor general’s arguments in favor of the law, Justice Elena Kagan reiterated “I just wanted to sort of understand your position.” Later, Justice Sonia Sotomayor remarked to Solicitor General Elizabeth Prelogar, “General, I think I’m finally understanding the argument, but let me make sure I do, OK?”
The questions the court tackled should have everything to do with what our current First Amendment doctrine should be.
The justices agreed on the basics: that social media platforms are hugely powerful and that a great deal of hateful and harmful speech can appear on those platforms. But the question of how to balance social media platforms’ argument that they must be allowed to determine which speech and speakers to allow on their platforms with these two states’ argument that they must be allowed to ensure that their residents hear a diversity of viewpoints understandably perplexed them. As Justice Ketanji Brown Jackson remarked early in oral arguments, it is difficult for the justices to even know…
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