Supreme Court Takes on First Amendment Application to Social Media Case

By Jerry McConway, updated on February 26, 2024

On Monday, the Supreme Court was set to hear arguments on what may be the most crucial ruling in terms of social media regulations regarding the First Amendment.

The court will take on laws in red states, Florida and Texas, protecting “conservative speech.”

Talking Points…
- Social media and the First Amendment
- What the experts are saying
- Analysis

Social Media and the First Amendment

Saying that this case is the most important case the court will see regarding social media and free speech is hardly an understatement. Going back to the days of Trump in office, we know algorithms adjusted and social media platforms censured conservative personalities as well as people being shadow-banned. This caused obvious outrage and eventually led to several cases being filed to decide if big tech had the right to censor this type of content.

The biggest question that needs to be answered is whether sites like YouTube and Facebook are publishers, shopping centers, or utility companies. If they are publishers, such as a newspaper, the outlets can publish whatever they want with no interference from the government. If they are like shopping centers, people can say what they want. If they are like utilities, the outlets are bound to publish whatever people say as free speech. But even that gets muddled, with Justice Alito previously stating:

“It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”

What the Experts Are Saying

The opinions from experts on this vary simply due to the fact that of the ideology of the expert as well as the subtle differences in each perceived role of social media and the platform owners. More conservative experts believe people have the right to say whatever they want, with no censorship, while more liberal experts believe there has to be some regulation on this to prevent fake news and hate speech.

In Texas, Governor Abbott obviously supported the law passed in Texas that would block censorship, stating:

“It is now law, that conservative viewpoints in Texas cannot be banned on social media.”

On the flip side of that are NetChoice and the Computer & Communications Industry Association, the two groups that filed suits to block the laws. The groups argued:

“Just as Florida may not tell The New York Times what opinion pieces to publish or Fox News what interviews to air, it may not tell Facebook and YouTube what content to disseminate.

“When it comes to disseminating speech, decisions about what messages to include and exclude are for private parties — not the government — to make.”

Judge Kevin C. Newsom was one of the judges in the Florida case that voted to block the new legislation, stating:

“Social media platforms exercise editorial judgment that is inherently expressive.

“When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction breaches of their community standards, they engage in First Amendment-protected activity.”

Analysis

It would be tough to speculate where the court will land on this because it is completely unchartered waters. From my perspective, social media is just another outlet for personal speech, equating it to someone standing on the street corner preaching or giving their two cents about one issue or another. If a person can stand out in public and more or less preach about whatever they want, and that speech is protected, then how can speech not be protected on open forums such as Facebook, X, and YouTube?

What is extremist will always be in the opinion of the person editing the content, so how do you come up with editing guidelines to ensure the ideology of the editor or censor does not come into play? How the court sees that your guess is about as good as mine on that one.

About Jerry McConway

Jerry McConway is an independent political author and investigator who lives in Dallas, Texas. He has spent years building a strong following of readers who know that he will write what he believes is true, even if it means criticizing politicians his followers support. His readers have come to expect his integrity.

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