The Supreme Court agreed Friday to make a ruling over whether laws made by individual states that seek to regulate Facebook, TikTok, X and other global social media platforms are allowable under the US Constitution. If not, then presumably such media will be regulated, if necessary, by the federal government in Washington.
The justices will review laws enacted by mostly Republican-dominated legislatures and signed by Republican governors in Florida and Texas. While the actual details vary, laws on both states aim to prevent social media companies from censoring users based on their viewpoints.
Traditionally, social media platforms, as private entities, have broad leeway to make editorial decisions on what user content to allow on their websites or apps, and most apps require people to agree to detailed rules and extensive terms of service in order to continue using them.
Tech companies like Facebook, Twitter and YouTube, represented by trade groups NetChoice and the Computer and Communications Industry Association, known as CCIA, say that both laws infringe upon the free speech rights of companies under the Constitution’s First Amendment by restricting their ability to choose what content they wish to publish on their platforms.
The announcement comes just a few days after the UK enacted its own Online Safety Bill, whose main purpose is to block access of unsuitable material to children and provide for criminal penalties for executives of companies that do no comply with the law.
A key sticking point is what the UK legislation means for end-to-end encryption, a security technique used by services like WhatsApp that mathematically guarantees that no one, not even the service provider, can read messages sent between two users.
The new law gives regulator Ofcom the power to intercept and check this encrypted data for illegal or harmful content.
The Supreme Court’s announcement, three days before the start of its new term, comes as the justices continue to grapple with how laws written at the dawn of the digital age, or earlier, apply to the online world.
The justices had already agreed to decide whether public officials can block critics from commenting on their social media accounts, an issue that previously came up in a case involving then-President Donald Trump. The court dismissed the Trump case when his presidential term ended in January 2021.
Separately, the high court also could consider a lower-court order limiting executive branch officials’ communications with social media companies about controversial online posts.
The new case follows conflicting rulings by two appeals courts, one of which upheld the Texas law, while the other struck down Florida’s statute. By a 5-4 vote, the justices kept the Texas law on hold while litigation over it continues.
But the alignment was unusual. Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, Brett Kavanaugh and Amy Coney Barrett voted to grant the emergency request from two technology industry groups that challenged the law in federal court.
Justices Clarence Thomas, Samuel Alito, Elena Kagan and Neil Gorsuch would have allowed the law to remain in effect. In dissent, Alito wrote, “Social media platforms have transformed the way people communicate with each other and obtain news.”
Proponents of the Florida and Texas laws, including Republican elected officials in several states that have similar measures, have sought to portray social media companies as generally liberal in outlook and hostile to ideas outside of that viewpoint, especially from the political right.
The tech sector warned that the laws would prevent platforms from removing extremism and hate speech.
Without offering any explanation, the justices had previously put off consideration of the case even though both sides agreed the high court should step in.