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Texas wants to ban social networks from deleting, flagging or not rewarding posts. Florida has also issued bans. SCOTUS is skeptical.

For almost four hours on Monday, the US Supreme Court (SCOTUS) heard arguments on a law from each of the US states of Florida and Texas. They want to vehemently intervene in the freedom of online platforms to decide what content they want to host or what content they want to reward financially. This would have far-reaching consequences for the World Wide Web, even beyond the borders of the two US states.

The industry associations Netchoice and CCIA (Computer and Communications Industry Association) are fighting the laws, arguing that they violate the right to free speech as enshrined in the First Amendment of the US Constitution. It also includes the right not to be compelled to say something you don't want to say. The Florida law has already been declared provisionally inapplicable by a US federal district court [1], while the Supreme Court itself had to do the same for the Texas law [2].

The Supreme Court will now clarify whether or to what extent the laws violate the US Constitution. The industry associations are calling for the law to be repealed in its entirety, while the governments of Florida and Texas are defending their laws. The US federal government is arguing for an interim solution: the ban on all moderation is unlawful, while provisions on transparency for terms of use and moderation statistics as well as appeal options for affected users are permissible.

Majority of judges see laws as problematic

At the hearing, the majority of Supreme Court judges doubted that states can force online platforms to host certain content or people – at the same time, they were critical of the market power of individual providers. Chairman John Roberts emphasized the key question: Who should decide which voices should be heard on a platform – the government or the private platform operators? The First Amendment of the US Constitution weighs heavily in favor of private companies, Roberts explained. The provision prohibits the government, but not private entities, from exercising censorship.

Justice Samuel Alito wanted to know whether "content moderation" was not merely a euphemism for censorship. Netchoice lawyer Paul Clement was not at a loss for an answer: "If the government does it, it could be a euphemism for censorship. When a private party does it, content moderation is a euphemism for editorial discretion."

Alito and fellow Justice Sotomayor hinted that they are considering sending the cases back to lower courts because the court records on file leave too many questions about the facts. In fact, it is not the task of the US Supreme Court to determine the facts of the case in judicial review proceedings. This is the task of lower courts. The Supreme Court merely decides certain questions of law based on the facts established there.

Tide pods have come up repeatedly. Time and again, there are waves of dangerous pranks or so-called challenges in which users are encouraged to engage in dangerous behavior, be it driving blind, using a book as protection against a firearm projectile or eating detergent - the famous Tide Pod Challenge. YouTube banned such videos five years ago [3], but under the new Texas law it is no longer allowed to delete such posts or reduce their distribution.

Free ride for Nazis

Even anti-Semitism or the glorification of terrorism would no longer be allowed to be deleted by large social networks in Texas, nor would they be allowed to provide notices or exempt them from financial payments for particularly frequently viewed posts. The Texas representative suggested that the platform operators could, for example, forbid any mention of Al Qaeda. This would affect both voices for and against the terrorist organization and comply with the law.

This is precisely why the law would lead to many topics in social networks being blocked in the first place, argues Netchoice. This would make the offerings less attractive for both users and advertisers. The European Union's Digital Services Act (DSA) was also discussed. One judge wanted to know why the industry associations were also resisting transparency regulations when they are subject to similar requirements in the EU. Netchoice said that the Texas requirements were a hundred times more burdensome than the EU regulations.

Afterwards, Netchoice celebrated the unusually long hearing as a success. The representatives of the two US states had failed to defend their laws as constitutional. A decision by the Supreme Court is expected in June - however, it could be limited to an order that the lower courts must gather further facts.

The laws

The two laws are quite different, each comprising a grab bag of provisions. Florida's law (known as SB 7072 [4]) regulates significantly more than just traditional social networks. The definition of"social media platform" includes all"information services, systems, Internet search engines, or access software providers" available in Florida that generate more than 100 million US dollars in annual revenue or have at least 100 million monthly users worldwide. This therefore also includes the companies mentioned in the hearing, Uber, Etsy and Amazon Web Services (AWS).

They are prohibited from excluding political office holders, political candidates and media companies for longer than 14 days, even if they have violated the terms of use. This is a reaction by the Republicans in power in Florida to the exclusion of Donald Trump by Twitter [5], Spotify, Meta Platforms and others following Trump's attempted coup in early 2021.

No protection for Disney in Florida

However, the protection for media companies does not apply to journalists, but only to large media companies - and even there, not to companies that operate theme parks. This is a deliberate kick against Disney because this media company dared to criticize Florida's governor for banning the mention of homosexuality in school lessons.

In addition, there are restrictions on how the registered online providers must treat all users. Terms of use must be applied uniformly; changes would be permitted no more than once every 30 days. Interventions such as the blocking of postings, the provision of notices, the reduced distribution of postings or the blocking of comments are only permitted after explicit notification of the respective user in individual cases. In addition, users are entitled to exemption from any algorithms, review of blocking decisions and insight into the access figures for each individual own or third-party post.

If a post is from a large media company (except theme park operators), political office holder or candidate, or if a post deals with an office holder or candidate, shadow-banning and prioritization are not permitted at all - unless someone pays for the prioritization. If online providers violate the law, they face severe penalties, claims for damages and exclusion from public contracts.

Texas

Although Texas' law (known as HB 20 [6]) attempts to refer only to traditional social networks, it goes much further. Any discrimination against a user's expression is defined as censorship: "'Censor' means to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression."

All of this is prohibited because of content or based on residence in Texas or a certain part of the state. Even users who express themselves in a frowned upon manner outside the platform may not be discriminated against on the platform. Social networks must therefore also host people who, for example, publicly call for the overthrow of the democratic system or condone racial discrimination. Contractual waivers for such "protection" are invalid.

There are few exceptions; for example, an operator may only intervene to protect children if it has been requested to do so by relevant institutions, but not of its own volition. Even the threat of violence may only be blocked in certain cases.

Similar to Florida, there is the threat of penalties and lawsuits from users. In contrast to Florida, however, the Texas law would have an effect beyond the state's borders, as not only residents and visitors to the conservative state are entitled to sue, but also companies from other states that do business in Texas. Social network operators also fear that they will not be able to simply withdraw from Texas, as this alone could potentially be punished as illegal censorship.

The cases before the US Supreme Court are Moody v Netchoice (Case No. 22-277 regarding Florida) and Netchoice v Paxton (Case No. 22-555 regarding Texas).

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