On social media companies’ First Amendment rights, Supreme Court should leave Congress leeway to regulate
For generations, the Supreme Court has interpreted how the First Amendment’s free speech clause — “Congress shall make no law…abridging the freedom of speech” — limits the government’s authority to restrict expression. One line of First Amendment cases addresses situations in which government has tried to force private organizations to host speech that the organizations would prefer not to sponsor. Now, the high court is poised to weigh in on whether government may dictate which speech social media companies must carry on their platforms.
The justices will rule on whether Florida and Texas violated the First Amendment when they separately enacted laws requiring large social media companies to carry political speech they otherwise might choose to exclude. In consolidated cases referred to as NetChoice, the industry makes a persuasive argument that the First Amendment protects their content decisions as a form of editorial judgment.
But while the Florida and Texas laws ought to be struck down as unconstitutional, the high court needs to refrain from embracing the industry’s sweeping theory of its free speech rights — a claim so broad that it might categorically preclude more modest, narrowly tailored laws regulating social media. The justices will hear oral arguments in the NetChoice cases this winter, with a ruling expected by the end of June.
It was inevitable that disputes concerning free speech on social media platforms eventually would reach the Supreme Court, and the 2023-2024 term boasts a trio of cases presenting variations on the theme.
On Oct. 31, the court heard oral arguments........
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