Justin (Gus) Hurwitz, academic director at the Center for Technology, Innovation & Competition at Penn Carey Law, discusses the pair of cases and the consequential ramifications of a ruling.
The Guardian of Law sculpture at the west entrance of the Supreme Court in Washington, D.C.
(Image: AP Photo/Mark Schiefelbein)
The U.S. Supreme Court on Monday heard nearly four hours of arguments about laws in Texas and Florida that would limit social media companies’ abilities to moderate content on their sites. The laws were passed in response to conservative complaints about online censorship of certain points of view.
Two tech industry groups, NetChoice and the Computer & Communications Industry Association, sued to block the laws from taking effect. They argued that the companies have the right to make decisions about their own platforms under the First Amendment.
Hurwitz’s work builds on his background in law, technology, and economics to consider the interface between law and technology and the role of regulation in high-tech industries.
What is at stake with these cases?
It helps to frame the context of these cases a bit to understand what is at stake in them. Both cases involve similar laws that were adopted in Florida and Texas in response to concerns that internet platforms like Facebook and Twitter (now X) were censoring conservative speakers. Both laws are, roughly, attempts to require platforms to treat speech on them equally. The basic legal challenge that this creates is that these are private platforms, and the First Amendment generally doesn’t allow the government to tell companies like these what speech they need to carry. That would be like the government telling a newspaper what articles it could carry. On the other hand, there are limited exceptions where the government has been allowed to require some businesses, like shopping malls and cable networks, to carry certain types of content.
With that as background, we can start to see what’s at stake in these cases. First, depending on how this case is decided, it could affect much more than just these internet platforms. It could affect the speech rights of newspapers, cable companies, comments sections, and product reviews. Really any place people gather to speak could be affected, even a college campus.
It could also require these platforms to fundamentally alter how they operate. If Twitter, Facebook, Instagram, Discord, Reddit, or any other platform is required to host all speech on topics their owners find problematic, or to not host speech that the government finds problematic, they might simply decide it’s easier not to host certain types of speech at all. The entire internet, with all of its openness and unmoderated access, could be turned back into the 1980s-era world of walled gardens and moderated forums.
At the farthest extreme, some fear that our entire democracy is at stake. For instance, there are some very liberal and progressive groups that have sided with Florida and Texas in this case because they believe that large platforms like Facebook and Twitter have too much influence over the speech that defines our contemporary political environment. They think that the government needs the power to limit speech in order to protect our democracy. Others would argue the opposite: that we need to limit government’s power to control private speech in order to protect our democracy.
How important is are these cases and why will this be such a major ruling?
They very well could be the most important First Amendment cases in the internet era—really, in the era of modern media, going back decades to cases involving newspapers, radio, and telephones. During Monday’s arguments, Justice Alito noted that the closest cases we have to speech on the internet involve vastly different technologies. It is very likely that, however the Court decides these cases, its opinion will affect our longstanding understanding of First Amendment law that is based upon precedents designed for those other technologies.
It should also be emphasized that the Court tries not to make decisions that have sweeping effects like that unless it is necessary. It is very likely that the Court will decide this case as narrowly as possible. Indeed, parts of the oral arguments suggest that some justices would like to not decide this case and instead to send it back down to the lower courts to be further debated. This would allow the Supreme Court to ultimately decide a much narrower question at some point in the future, if it ever needs to decide the case at all.
How will the ruling affect everyday people?
Depending upon how the case is decided, it could dramatically affect your experience online. Platforms might no longer be able to do a lot of the content moderation that they do today. That means that a lot of content that is posted today that you don’t see, because the platforms decide for whatever reason not to show you, you would see. It could be that the platforms today find the speech objectionable. Or it could just be that they think it offers you a better user experience not to see some content. It’s also possible that platforms could just dramatically limit opportunities for users to post their own content.
After listening to Monday’s arguments and the justices’ questions, what are your takeaways or thoughts on where they might stand?
Monday’s arguments were messy. It’s hard to describe them any other way. Both the states and the parties challenging the states’ laws made decisions early in the litigation that frustrated the justices and put them in a bit of a pickle that limits some of the options for how the Court might proceed. There were also a lot of “line drawing” questions—what’s the difference between expressive and non-expressive speech? What companies are actually affected by these laws and potentially by the Court's opinion? There were some unusual groupings of justices that you could see forming on some topics.
How the Court ultimately decides is anyone’s guess. I think that it is very likely that we will get several opinions in this case, with different groups of justices signing on to different parts of each opinion.
What’s the most important thing for people to understand about these cases?
Cases like this are like glaciers. They are big and reshape the landscape, but they move slowly. It will be months before we have the Court’s opinion. But even that will just be the beginning of the process of understanding and implementing the opinion. No matter the outcome, there will very likely be new versions of these laws and new approaches to content moderation, which will lead to more cases, some of which will likely make it all the way back to the Supreme Court again. Students today will still be unpacking and studying this case in five, 10, 20 years.
Is there anything else that is important to note?
I think the most likely outcome in this case will, by and large, reject the states’ efforts to regulate platforms content moderation practices. This will leave the existing online experience the same as it currently is, at least for the near future. But I also expect that the Court’s opinion will include a fair bit of what we call dicta, or discussion about how the Court is thinking about the case and the First Amendment. This won’t change the law today, but it does signal to lawyers and lawmakers how the Court will think about future cases.
There is some possibility the Court will adopt new, exciting ways of thinking about the First Amendment, and fundamental understandings of speech and democracy, in this case. For instance, we have always thought about the First Amendment as a speaker’s right—that is, it says the government can’t limit your ability to speak outside of very limited circumstances.
Some scholars have been arguing that the First Amendment is really about listeners’ rights, and it will be interesting to see if the Court gives this idea any weight. Under this view, limiting your ability to speak is problematic because it limits my ability to hear what you have to say. In that sense, a “listeners’ rights” approach to the First Amendment isn’t much of a change. But in a world in which we’re all constantly inundated with too much information it would also allow the government to limit speakers’ rights where necessary to preserve listeners’ rights. That would be a very new and exciting change in First Amendment law. I don’t know if it would be good or bad, but it would be, I think, both the most substantial and most exciting change that the Court could make.
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