The Supreme Court appears inclined to reinstate Texas and Florida laws seizing control of much of the internet — both of which are currently blocked by court orders — because those laws are incompetently drafted.
If that outcome sounds confusing, don’t worry, it is. Monday’s oral arguments in Moody v. NetChoice and NetChoice v. Paxton were messy and often difficult to follow. And the ultimate outcome in these cases is likely to turn on distinctions that even the lawyers found it difficult to keep track of.
Before we dig into any of that, however, it’s useful to understand what these cases are actually about. Texas and Florida’s Republican legislatures both passed similar, but not identical, laws that would effectively seize control of content moderation at the “big three” social media platforms: Facebook, YouTube, and Twitter (the platform that Elon Musk insists on calling “X”).
These laws’ advocates are quite proud of the fact that they were enacted to prevent moderation of conservative speech online, even if the big three platforms deem some of that content (such as insurrectionist or anti-vax content) offensive or harmful. Florida Gov. Ron DeSantis (R) said his state’s law exists to fight supposedly “biased silencing” of “our freedom of speech as conservatives … by the ‘big tech’ oligarchs in Silicon Valley.” Texas Gov. Greg Abbott (R) said his state’s law targets a “dangerous movement by social media companies to silence conservative viewpoints and ideas.”
At least five justices — Chief Justice John Roberts, plus Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett — all seemed to agree that the First Amendment does not permit this kind of government takeover of social media moderation. There is a long line of Supreme Court cases, stretching back at least as far as Miami Herald v. Tornillo (1974), holding that the government may not force newspapers and the like to publish content…
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