The Supreme Court announced it would rule on whether to allow recent laws passed in Florida and Texas that restrict social media sites from removing certain users and posts. These broad laws aim to prevent censorship of political candidates and all user viewpoints.

The share of Americans ages 18 and over who use social media has ballooned from 50 percent to 72 percent in the last decade, according to Pew Research. As global conflicts escalate and the 2024 U.S. presidential election approaches, the Supreme Court’s decision may have a profound impact on the future of online speech and on democracies worldwide.

Lawmakers in Florida and Texas have argued their legislation is necessary to prevent social media platforms from unfairly censoring or suppressing conservative viewpoints. To their point, civil discourse is the backbone of well-functioning democracies. In fact, both sides of the political aisle have accused the social media giants of having biased moderation practices. A 2020 poll by Pew found that 75 percent of Americans — conservatives and liberals alike — believe Facebook and Twitter/X censor political views.

The First Amendment of the Constitution protects individuals from government censorship. The question the Supreme Court is grappling with is the extent to which the First Amendment provides such rights to private enterprise.

There’s a history of case law protecting the rights of privately owned publishers and social networks to make their own editorial decisions — including algorithmically sorted content. The U.S. Court of Appeals (11th Circuit) ruling in May 2022, which blocked Florida’s law, stated “while the Constitution protects citizens from governmental efforts to restrict their access to social media…no one has a vested right to force a platform to allow [a citizen] to contribute to or consume social media content.”   However, in a contradictory ruling at the same time, the 5th Circuit upheld the Texas law, denying private companies’ First Amendment rights.

If the Supreme Court sides with the 5th Circuit, thereby forcing social media sites to publish or not publish certain types of speech, in effect the government will ironically be trampling on the First Amendment rights of private companies. This could set a troubling precedent. Once the government gets involved in making moderation decisions for social platforms, it’s easy to imagine how future lawmakers could abuse such powers — for instance, by forcing social platforms to promote the government’s position in propaganda, conflicts, and other political trigger points.

Another problematic outcome in this scenario is that if private businesses can be told what they can and can not publish on their privately held social media platform, why could a privately held account or a private individual not be told the same thing.  After all Co. v. Riggs (203 U.S. 243 (1906)), the Court accepted that corporations are for legal purposes “persons”.  If a corporation is a “person,” but can be told what they can and can not do in terms of social speech/platforms; why could not actual persons be told the same? We call those slippery slopes.  Remember, free speech is only as free as the people demand.

There are relevant cases we can look to for hints of the Supreme Court’s forthcoming decision. For instance, the 2018 ruling determined that a Colorado baker had the right to refuse a wedding cake for a gay couple because it went against his religious beliefs. This set a strong precedent for the rights of business operators to allow or deny service at their discretion. Given the conservative majority on the high court, it’s conceivable it would be sympathetic to Florida and Texas on this matter. Yet by that same measure, the court’s history and conservative leanings suggest it is more likely to side with private enterprise over government intrusion.

Taking all this into account, the best solutions to support free expression whether we agree with it or not is to take it for what it is – generally an opinion, not fact.

Instead of dictating content moderation policies for private companies, the Supreme Court can uphold the First Amendment rights of private enterprises, and lawmakers can focus on strengthening free market fundamentals and fair competition online, while supporting authentic civil discourse by allowing an open forum for people to take it for what it normally is – an private, individual’s opinion.

May God Bless You, Your Business, Israel, and the United States of America,

Tom Winslow