SCOTUS To Hear Social Media Content Moderation Cases

Social media content moderation laws passed in 2021 in Florida and Texas will go to the US Supreme Court for a decision whether they violate the First Amendment. The laws would make it harder for social media companies to police user posts based on certain kinds of content, even if that content violates the company's terms of use. The states passed the laws as a measure against “anti-platforming" in response to claims that politically conservative speech is censored on social media. Both laws were challenged in court quickly, and the 5th and 11th Circuits reached different conclusions about whether they are constitutional. Based on that split in the Circuits, SCOTUS will take up the case.

Why It Matters

The First Amendment rights of corporations have been the focus of many "culture war" cases in the last decade, but the nature of speech and the fact that social media is so ubiquitous makes these cases particularly interesting. Do large corporations have the right to enforce content-based rules about how people can use their services? Do users have any countervailing rights to post whatever content they like on these (private) services?

Historically, First Amendment speech issues have pitted individual citizens or small citizen groups against the government. Increasingly, however, it is private corporations that are testing the limits of the First Amendment's protections for speech. In cases such as these social media content moderation cases, the operative question is whether the companies can act in ways the government could not -- whether they can restrain speech based on its content -- by virtue of being private entities.