One of several legal matters at hand in the Texas and Florida tech giants censorship of social media content pertains to Section 230 of the United States Communications Decency Act. Passed in 1996, Section 230 gives internet providers legal protections for hosting, moderating and removing most user content.

According to the New York Post, Section 230 was designed to prevent internet companies from being treated as publishers by shielding them from lawsuits by anyone claiming to be wronged by content posted by another user – even though the platforms typically engage in moderation of user-posted content.

In his dissent, Supreme Court after Associate Justice Samuel Alito, wrote, “It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”

Social media platforms have long argued that they are not publishers, in order to avoid legal liability for content posted by their users. However, in other instances, these same companies have claimed, in court, that they are publishers and have the right to exercise editorial control over content on their platforms.

For instance, Facebook’s parent company, Meta, recently argued that a subpoena from the District of Columbia’s attorney general interfered with its ability to exercise editorial control over content on its platform.

“Facebook has long had the same public response when questioned about its disruption of the news industry: it is a tech platform, not a publisher or a media company,” as the Guardian reported in 2018.

But in legal arguments, Facebook has repeatedly argued, it’s “a publisher, and a company that makes editorial decisions, which are protected by the First Amendment.”

Social media platforms “claim that they are not publishers and that they should not be liable for the information that shows up on their platforms,” McCollough said.

“You’re either a publisher or you’re not a publisher, and they’ve always said they’re not publishers. So why are they saying they’re publishers now? Are they publishers for the First Amendment and not publishers for Section 230? Explain that one,” he added.

Social media platforms’ First Amendment rights are also at issue. In a brief submitted to the Supreme Court, the State of Texas argued that HB 20 does not affect social media platforms’ free speech rights because “no reasonable viewer could possibly attribute what a user says to the Platforms themselves.”

“Given the Platforms’ virtually unlimited capacity to carry content, requiring them to provide users equal access regardless of viewpoint will do nothing to crowd out the Platforms’ own speech,” the brief also stated.

According to McCollough, “the big sexy issue” in this case involves content moderation. “Can a state basically prohibit discrimination based on viewpoint? And it ultimately comes down to whether, when these platforms are engaging in so-called content moderation, whether that is them ‘speaking’ — if that is a form of speech,” he said.

“We have always contended that that is not speech. It’s conduct. It’s the consumer, the one who is doing the posting, that is engaging in speech. By taking down speech that the platform may not approve of, that is not speech by the platform,” he added.

A policy principle known as common carriage is also implicated. The Communications Act of 1934, for instance, classifies telephone companies as “common carriers,” requiring those companies to make their services available to the public at affordable rates and regardless of viewpoint or other factors.

In a previous legal brief, Texas argued that social media platforms are “the twenty-first century descendants of telegraph and telephone companies: that is, traditional common carriers” – that must generally accept all customers without viewpoint discrimination.

In 2021, Justice Thomas compared social media platforms to communication utilities that are regulated under common carrier laws, on the basis that concentration in the industry gives these companies “enormous control over speech.”

McCollough said, “When you hold out to indiscriminately serve the public on uniform terms and conditions – in other words, if you say I’ll cover it if you just accept my pre-published terms and conditions, then that basically makes you a common carrier.”

The federal government has also asserted its own purported First Amendment rights.

Solicitor General Elizabeth B. Prelogar argues that lawsuits challenging government attempts to regulate social media content violate the First Amendment on the basis that the office of the president has a “bully pulpit to seek to persuade Americans … to act in ways that the president believes would advance the public interest.”

The Wall Street Journal reported that the Supreme Court asked the DOJ for its views regarding the Florida and Texas laws “as is typical in cases involving federal interests.” In a brief, Prelogar urged the court to hear the cases.

“When a social-media platform selects, edits and arranges third-party speech for presentation to the public, it engages in activity protected by the First Amendment,” she wrote, adding that “the act of culling and curating the content that users see is inherently expressive, even if the speech that is collected is almost wholly provided by users.”

Chris Marchese, litigation director for NetChoice, said, “Online services have a well-established First Amendment right to host, curate and share content as they see fit.”

And Matt Schruers, president of the Computer & Communications Industry Association, said, “It is high time that the Supreme Court resolves whether governments can force websites to publish dangerous content. … Telling private websites they must give equal treatment to extremist hate isn’t just unwise, it is unconstitutional and we look forward to demonstrating that to the court.”

McCollough told The Defender that what the parties will be briefing and arguing is whether the two state statutes’ content moderation restrictions comply with the First Amendment – in other words, each state’s prohibition against viewpoint discrimination and whether that violates the First Amendment.

The Supreme Court will also hear arguments related to the “individualised explanation requirements” and the extent to which they “comply with the First Amendment.”

“What the solicitor general argued is that these platforms are just way too big,” McCollough said. “They have so many posts that it would be so burdensome on them to be reasonable with their consumers, and that this violates the First Amendment.”

McCollough called this “a variation of the ‘too big to fail’ argument … They’re too big, they do so much, that they just can’t be bothered with an individualised explanation.”

According to McCollough, the Supreme Court’s decision will have major implications for contemporary understandings of free speech and First Amendment rights. “If you look at the position of the solicitor general and, therefore, the US government, they are saying that the government has a right to free speech, the platforms have a right to free speech, but the people do not have a right to free speech.”

“From a policy perspective, what is the message being sent to Americans? Sit down, shut up, there’s nothing you can do about it, there’s nothing the state legislature can do about it,” he said. “And if they are right about the First Amendment, there’s nothing Congress can do about it.”

“Don’t sit down, don’t shut up, and yes, there is something you can do about it,” he said.

• The Defender report