Supreme Court justices appear skeptical of Texas and Florida social media laws These cases raise a critical question for the First Amendment and the future of social media: whether states can force the platforms to carry content they find hateful or objectionable.


Supreme Court justices appear skeptical of Texas and Florida social media laws

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The First Amendment was back at the Supreme Court today. At issue was free speech on big social media platforms. Social media companies sued Texas and Florida over state laws that limit the sites' ability to moderate content. How the justices rule could change the way these platforms operate. NPR justice correspondent Carrie Johnson watched the arguments at the court, and she is here now in the studio. Hey, Carrie.


SHAPIRO: Tell us about how these laws in Florida and Texas came to be.

JOHNSON: State officials in Texas and Florida said these big sites had been silencing conservative voices. They passed these laws after former President Donald Trump was kicked off several platforms following the violence at the Capitol on January 6, 2021. And these laws bar the big platforms from discriminating against people because of their viewpoint. They also require sites to give individual explanations for blocking or booting people. Attorney Henry Whitaker argued for the Florida law. He said these social media platforms only act on a tiny part of the material they host on their sites. Then Justice Elena Kagan jumped in.


ELENA KAGAN: You know, the 1% that's like, we don't want anti-vaxxers on our site...


KAGAN: ...Or we don't want insurrectionists on our site - I mean, that's what motivated these laws; isn't it? And that's what's getting people upset about them.

JOHNSON: Justice Kagan says the problem is there's disagreement about what constitutes misinformation about things like voting and health.

SHAPIRO: And which social media platforms are covered by these laws, and how did they respond in court today?

JOHNSON: That's actually an open question about how many sites these laws cover. It seems like YouTube, Facebook and Instagram count. But many of the justices across ideological lines really struggled with whether the driving app Uber might be included or e-commerce sites where people buy things, Venmo and, if so, how that might change their legal analysis. Attorney Paul Clement argued for the trade associations challenging these laws. He encouraged the justices to focus on the very biggest platforms and the stakes for them.


PAUL CLEMENT: If this statute goes into effect, we sort of have to fundamentally change our business models. So, you know, what we might do in the interim - at least some of these companies might do - is, you know, just, like, let's do only puppy dogs, at least in Florida, until we can get this straightened out.

SHAPIRO: You know, Carrie, there's so much precedent for the Supreme Court ruling on the First Amendment but not a ton for social media sites and internet speech. So how deeply did the justices dig into the history here?

JOHNSON: They really did dig in. You know, the social media companies say the kind of arranging and curating they do is an editorial judgment that deserves a lot of First Amendment protection, like a newspaper does - gets. But lawyers for Florida and Texas say the big platforms are more like phone companies or like UPS. They connect calls or drop off parcels, but they don't speak themselves. Justice Samuel Alito says neither of those analogies really worked or sounded right to him. He says the internet is different than a newspaper. There's no space limit, for one thing. The social media platforms say that makes content moderation and blocking all the more important because otherwise, these platforms are going to be filled with garbage or hate speech, and users can't find what they want to see there.

SHAPIRO: The Republican-led states that pass these laws say that the social media companies engaged in a form of censorship. Did the justices engage with that idea today?

JOHNSON: There was a lot of discussion of this. Justices Clarence Thomas and Alito seemed to take issue with what the platforms call content moderation. It was kind of a euphemism for censorship, they said. But Justice Brett Kavanaugh took a really different view. He says only the government engages in censorship. When a private company decides what to include or exclude, that usually gets First Amendment protection, he said. And the chief justice, John Roberts, says it matters whether it's the government or a private business making those big decisions about content.

SHAPIRO: So in just a sentence or two, any sense of how the court might rule here?

JOHNSON: You know, they seem to be thinking out loud about how far they want to go. The laws in Florida and Texas have been blocked in an early stage - lots of questions about how these laws might work in practice for some of the smaller social media platforms. But the solicitor general encouraged the justices to leave that for another day and another case, not this one.

SHAPIRO: That's NPR's Carrie Johnson. Thank you.

JOHNSON: My pleasure.

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