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Supreme Court Arguments on Social Media Laws

February 28, 2024

CTIC Academic Director Justin (Gus) Hurwitz discusses what the Court’s ruling could mean for the future of social media.

At Penn Today, Justin (Gus) Hurwitz, Senior Fellow and Academic Director of the Center for Technology, Innovation & Competition (CTIC), discusses the recent oral arguments in Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, two cases concerning social media companies’ abilities to moderate content on their sites as well as the potential ramifications of the Supreme Court’s decision.

Justin (Gus) Hurwitz, Senior Fellow and CTIC Academic Director Justin (Gus) Hurwitz, Senior Fellow and CTIC Academic DirectorHurwitz’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. He is Director of Law & Economics Programs at the International Center for Law & Economics (ICLE), a think tank based in Portland, Oregon, where he directs its law and economics-focused research program and helps to translate academic research into applied policy issues.

From Penn Today:

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… . 

Q: What is at stake with these cases?

Hurwitz: 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.

Read Hurwitz’s full interview at Penn Today.