The US Supreme Court heard oral arguments this week in a case (well, technically two cases) that could shape the future of social media and the Internet. The cases center on laws enacted by Florida and Texas against major social media companies like Meta and Twitter from restricting or even removing accounts over matters of speech. At the heart of arguments is whether social media operates with the protections of a common carrier, thus allowing for all speech to exist on its service unabated, or social media operates more like a newspaper, thus enabling editorial moderation.

Paul Clement, the lawyer who represented the social media companies, argued that if these firms were to follow the Texas and Florida laws, stark choices would arise: "...if you have materials that are involved in suicide prevention, you also have to have materials that advocate suicide promotion. Or if you have those on your site that are pro-Semitic, then you have to let materials onto your site that are anti-semitic,” Clement stated, notes Politico.

Speaking with NPR, Matt Schruers, president of the Computer & Communications Industry Association, added that "there is nothing more Orwellian than the government trying to dictate what viewpoints are distributed in the name of free expression …And that's what's at issue in this case."

But the solicitor generals of Texas and Florida disagree. "The platforms do not have a First Amendment right to apply their censorship policies in an inconsistent manner and to censor and deplatform certain users," Henry Whitaker, Florida's solicitor general began. "Everyone, left right or center, should oppose government control of speech. ..because as it may be your person in the White House today, we know that that will not be forever. And that's why the First Amendment is so important and so paramount."

For their part, not all justices seemed to follow the case. Justices Barrett and Thomas seemed rather confused by the legal ramifications of Florida and Texas's laws and how they tied in with federal laws and precedences. “If what we say about this is that this is speech that’s entitled to First Amendment protection, I do think then that has Section 230 implications for another case,” Barrett said, before adding that "it’s always tricky to write an opinion when you know there might be landmines that would affect things later.”

Section 230

So much of Internet law appears to rest on the foundation of a single legal code: Section 230. Originally enacted in 1996 (when the Internet looked and functioned and was of the exact same importance to our lives as it is today) as part of the Communications Decency Act, the code basically protected Internet companies from any speech made on their platform. "“The primary thing we do on the internet is we talk to each other," Eric Goldman, a professor at Santa Clara University, told PBS. “The Supreme Court could easily disturb or eliminate that basic proposition and say that the people allowing us to talk to each other are liable for those conversations. At which point they won’t allow us to talk to each other anymore.”

THE VERDICT:

At stake is the very validity of Section 230. Should the Supreme Court rule in favor of Texas and Florida, it may very well reshape the Internet as we know it. While the Court seems split on the case, they are believed to be leaning towards the social media firms. A decision should be reached by Spring.