The Future of Social Media Content Moderation: Starting in Texas and Florida

By: Sari Richmond

Edited by: Valerie Chu and Chloe Shah

As a legal battle that has been brewing for the last few decades comes to a climax, the Supreme Court heard arguments on February 26, 2024, regarding laws passed in Texas and Florida focused on eliminating the ability of social media companies to moderate content.[1] The sentiment that social media companies were unfairly obstructing conservative viewpoints gained traction and was heightened by the banning of former president Trump from some social media sites after the storming of the Capitol on January 6, 2021.[2] After Texas and Florida initially passed these laws eliminating the ability of social media companies to moderate content, NetChoice, an association of technology companies, sued and argued that companies have the right to editorial discretion, or to monitor what is posted on their sites.[1] The main stance of NetChoice and its associated companies, which include Meta (Facebook), Alphabet (Google, Youtube), and Snap (TikTok, Snapchat), is built on the idea that without content moderation, sites like these would be rendered unpleasant and unusable by the spread of hate speech, harassment, spam, and other undesirable experiences for users.[3,4] 

As lawyers arguing in support of the laws expressed that social media companies exercising such discretion could be equated to ‘censorship,’ Paul Clement, a NetChoice lawyer, said that this term could only be applied to government restrictions over speech or publication and that in this circumstance, internet companies were practicing editorial judgment, a right that is protected by the First Amendment.[1] This difference in interpretation of the law is the foundation of all arguments surrounding the case as Supreme Court justices from both ends of the political spectrum weigh different facets of each states’ version of the law. Chief Justice John Roberts posed a question to Florida’s solicitor general about the validity of the state regulating what he describes as the “modern public square,” and another conservative justice, Brett Kavanaugh, noted that previous rulings surrounding similar issues emphasized the protection of editorial control rights by the First Amendment.[3] In a broader sense, the cases against these laws are asking justices to evaluate the validity of editorial discretion by social media companies, and by extension, consider whether the government can effectively force companies to publish and house any type of content.         

Editorial discretion is essentially the right of publishers or a platform to choose what content they display or “print” on their website or paper. Originally applied to newspapers, editorial discretion was the right of a newspaper or printing company to determine what news made it into paper, in what fashion, and to what degree.[5] Andrew Oldham, the Fifth Circuit Court of Appeals judge who ruled in favor of the Texas social media law, points out that the Supreme Court has never in the past utilized editorial discretion as a “special category of First-Amendment-protected expression”.[5] However, as critics of this ruling argued, through observing past precedents set by the Supreme Court and other lower courts, editorial discretion has carved out its own place in judicial rulings. In pivotal cases like CBS v. Democratic Nat’l Committee (1973) and Miami Herald Pub. Co. v. Tornillo (1974), the Court underscored the role of editorial control in free expression. The Court's stance emphasized that government regulation infringing on editorial decision-making would contradict the idea of a free press, erecting editorial discretion as a right protected by the First Amendment. This recognition culminated in Justice Clarence Thomas’s acknowledgment in Denver Area v. FCC (1996) that editorial discretion is fundamentally protected, establishing it as a category of expression preserved under the First Amendment.[5,6] 

While the two laws passed by Florida and Texas are often coupled in the media and are both under scrutiny for almost identical reasons, there are slight differences in the bills that are forcing Justices to consider future implications. For example, Texas’s version of the bill explicitly outlines some platforms exempt from the definition of “social media platform” while Florida’s version of the bill seems to be more vague; there is concern from both sides of the political spectrum that the broad nature of Florida’s bill could encompass a wide range of content that is not limited to “expressive content,” such as regulating platforms like Uber, Etsy, and G-Mail that do not publish content.[1] The Florida version of the law also includes fines, some up to $100,000 for damages in violation of the law, which the Texas version of the bill does not have.[7] Finally, the event that catalyzed the reaction to this issue was former President Trump’s removal from some media sites after January 2021. Texas’s bill attempts to prohibit companies from removing content due to the authors’ viewpoint while Florida’s bill attempts to prohibit companies from removing politicians.[8] It should be noted that the vagueness of Florida's bill and its potential to expand government regulation on editorial discretion to content that is not technically expressive is unexplored, and it is unclear whether editorial discretion in this situation would apply to data, statistics, or other types of information. 

Overall, the lawsuits being brought against Texas and Florida for their bills concerning content regulation by social media companies have brought about critical questions about maintaining the balance between editorial discretion and government oversight. The Supreme Court’s careful analysis of both states’ controversial laws spans the political spectrum and highlights the potential future implication of laws like these. Central to the issue lies the interpretation of editorial discretion as a right under the First Amendment. While proponents of the laws advocate for government intervention to counter perceived censorship by social media platforms, opponents emphasize the importance of preserving the editorial independence of these companies. The Court's examination of past legal precedents adds depth to the current issue. Distinguishing between the Texas and Florida laws reveals differences in scope and enforcement mechanisms that call for the Justices to conclude what might occur if these laws are accepted. The vague nature of Florida’s bill highlights the trend of broad language in lawmaking that allows for strong interpretation and adaptability. Due to the First Amendment’s ambiguous nature in this issue, a final ruling from the Supreme Court on this issue may take longer than usual; however, the resolution will undoubtedly have a massive impact on the way media is used and consumed.

Notes:

1. Savage, Charlie. 2024. “Takeaways From the Supreme Court Arguments on Social Media Laws.” The New York Times.

2. Madden, Monica. 2024. “Supreme Court grapples with Texas, Florida social media regulation laws.” KXAN. 

3. Kruzel, John, Andrew Chung, and Barnes Cellino. 2024. “US Supreme Court torn over Florida, Texas laws regulating social media companies.” Reuters. 

4. “US Supreme Court Weighs Florida, Texas Laws Regulating Social Media Companies.” 2024. VOA. 

5. Douek, Evelyn, and Genevieve Lakier. 2022. “Rereading “Editorial Discretion” | Knight First Amendment Institute.” | Knight First Amendment Institute. 

6. Bamberger, Michael A., and Margaret Jacobs. n.d. “Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996).” Justia US Supreme Court Center.

7. Macagnone, Michael. 2024. “Supreme Court grapples with state social media content laws.” Roll Call. 

8. “U.S. Supreme Court to weigh in on Texas social media law.” 2024. The Texas Tribune. https://www.texastribune.org/2024/02/26/texas-social-media-law-supreme-court/.

Bibliography:

Bamberger, Michael A., and Margaret Jacobs. n.d. “Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996).” Justia US Supreme Court Center. https://supreme.justia.com/cases/federal/us/518/727/.

Douek, Evelyn, and Genevieve Lakier. 2022. “Rereading “Editorial Discretion” | Knight First Amendment Institute.” | Knight First Amendment Institute. https://knightcolumbia.org/blog/rereading-editorial-discretion.

Kruzel, John, Andrew Chung, and Barnes Cellino. 2024. “US Supreme Court torn over Florida, Texas laws regulating social media companies.” Reuters. https://www.reuters.com/legal/us-supreme-court-weigh-florida-texas-laws-constraining-social-media-companies-2024-02-26/.

Macagnone, Michael. 2024. “Supreme Court grapples with state social media content laws.” Roll Call. https://rollcall.com/2024/02/26/supreme-court-grapples-with-state-social-media-content-laws/.

Madden, Monica. 2024. “Supreme Court grapples with Texas, Florida social media regulation laws.” KXAN. https://www.kxan.com/news/us-politics/supreme-court-grapples-with-texas-florida-social-media-regulation-laws/.

Savage, Charlie. 2024. “Takeaways From the Supreme Court Arguments on Social Media Laws.” The New York Times. https://www.nytimes.com/2024/02/26/us/politics/supreme-court-social-media-takeaways.html.

“U.S. Supreme Court to weigh in on Texas social media law.” 2024. The Texas Tribune. https://www.texastribune.org/2024/02/26/texas-social-media-law-supreme-court/.

“US Supreme Court Weighs Florida, Texas Laws Regulating Social Media Companies.” 2024. VOA. https://www.voanews.com/a/us-supreme-court-weighs-florida-texas-laws-regulating-social-media-companies-/7502962.html.