High Court Hears Big Tech 1st Amendment Cases: Can Social Media Companies Censor Speech?

WASHINGTON, D.C. – Social media companies and censorship were the topic of Supreme Court arguments Monday with the justices considering two cases involving how the First Amendment applies to social media, and their decision could fundamentally change free speech on popular platforms. 

Monday's arguments involve two state laws in Texas and Florida that increase transparency and accountability for big tech companies and could change how they operate going forward. 

"The logic that the social media platforms are saying is if we host speech then it's our right to decide what's on our platform and what's not, but that's not true for any other kind of common carrier," Daniel Cochrane of the Heritage Foundation explained to CBN News.

The Texas case challenges a law banning social media companies from removing political content, even if that content contains hate speech.  While the Florida case looks at a law making it illegal for platforms to ban current political candidates from social media.

"Here in front of the court, the tech companies are claiming that when they decide to take your posts or content down, it's really their free speech and they have a right to do it, so the justices seemed a little bit incredulous about that," Cochrane continued.  

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Florida's solicitor general argued that such sites gained popularity as bastions of free speech but claimed the tides have changed.

"They now say they are like editors of the user speech, rather like a newspaper," argued Henry Whitaker, Florida Solicitor General. "They contend that they possess a broad First Amendment right to censor anything they on their sites, even if doing so contradicts their own representations to consumers. But the design of the First Amendment is to prevent the suppression of speech, not to enable it."

Justice Sonia Sotomayor questioned if the Florida law is overly broad, raising concerns it would cover sites like Etsy and force them to sell products they don't want. 

"This is so, so broad. It's covering almost everything," Sotomayor said.

Justice Amy Coney Barrett raised similar concerns. 

"We're talking about the classic social media platforms, but it looks to me like it could cover Uber," she said. "It looks to me like it could cover Google's search engine, Amazon Web Services. And all of those things would look very different."

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Paul Clement, the attorney representing NetChoice, warned of significant disruptions to social media content if the court sides with the states, cautioning that companies may only allow puppy dogs on their sites to avoid controversies. 

"Is it anything more than a euphemism for censorship?" questioned Justice Samuel Alito.

"If the government is doing it, then content moderation might be a euphemism for censorship," answered Clement. "If a private party is doing it, content moderation is a euphemism for editorial discretion. There is a fundamental difference between the two."

A decision from the court is expected in June. 

Meanwhile, as Google, X, and Facebook face scrutiny at the Supreme Court for unfair censorship, Hulen Street Church in Texas is also raising alarms against Hulu for rejecting their ad promoting weekly worship services after the streaming service claimed it is "religious indoctrination." 

The church successfully placed its 22-second ad on Facebook, Instagram, and Google Ads, but Hulu rejected the ad twice.  When Pastor Wes Hamilton asked for a reason behind the rejection, Hulu replied that the ad violated policies against "Religious Indoctrination due to asking viewer to attend Thursday services."

Lawyers at First Liberty Institute have sent a letter to Hulu on the church's behalf urging Hulu to change its policy toward religious advertising.