Lawyers representing Florida and Texas argued before the Supreme Court on February 26 that the states should have the authority to regulate how social media platforms moderate content.
During oral arguments, the justices appeared to be searching for a fresh rule that could be employed to apply free speech principles to online conversations.
But there are “a bunch of land mines,” according to Justice Amy Coney Barrett.
“And if that’s a land mine, if what we say about this is that this is speech that’s entitled to First Amendment protection, I do think then that has Section 230 implications for another case, and so it’s always tricky to write an opinion when you know there might be land mines that would affect things later,” she stated.
This marks the first occasion the nation’s highest court has reviewed state laws regarding social media companies as “common carriers.” Such a designation could grant states the authority to impose utility-style regulations on platforms, preventing discrimination against users based on their political views.
Justice Clarence Thomas has previously advocated for the common carrier theory and has also voiced criticisms of Section 230 of the Communications Decency Act of 1996.
Section 230 reads, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The provision typically shields internet service providers and companies from legal responsibility for user-generated content on their platforms. Advocates argue that this provision, often referred to as “the 26 words that created the internet,” has cultivated an online environment where free speech thrives.
During the hearing, Chief Justice John Roberts hinted that governments may not be well-equipped to regulate rapidly evolving technologies.
It would be an “inflection point” for the government to deem the companies common carriers.
“Social media platforms, the internet, all of that stuff is an incredibly dynamic market,” the chief justice stated. “The government … maybe not so much.”
Rulings in the two cases are anticipated to be delivered by June 2024, coinciding with the intensification of this year’s presidential and congressional election campaigns.
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