Conservative justices express concerns about Florida and Texas laws that curb platforms’ content moderation policies.
In arguments at the top court on Monday, several justices expressed reservations about laws in Republican-led states that aim to curb Big Tech’s alleged censorship of right-wing viewpoints.
The tech industry’s biggest lobby groups are suing Florida and Texas over the laws in a case that cuts to the heart of the fraught issue of regulating speech in the digital era.
President Joe Biden’s administration has backed tech companies’ bid to challenge the laws, arguing they violate the First Amendment of the US Constitution, which upholds freedom of speech.
In remarks that appeared to be sympathetic to the tech companies, Chief Justice John G Roberts Jr, a conservative, expressed concern about government regulation of the internet.
“I wonder since we’re talking about the First Amendment whether our first concern should be with the state regulating what we have called the modern public square,” Roberts said.
“The First Amendment restricts what the government can do,” Roberts added.
“What the government’s doing here is saying ‘You must do this, you must carry these people.’”
Fellow conservative Justice Amy Coney Barrett also questioned why tech platforms should not enjoy the same discretion as newspapers to publish or not publish content.
“If you have an algorithm to do it, is it not speech?” she said.
Justice Elena Kagan, a liberal, voiced similar concerns, asking why it would not be a “classic First Amendment violation” to tell private companies that they cannot enforce their own content moderation policies.
In an exchange with a Biden administration lawyer, conservative Justice Samuel Alito appeared to side with Florida and Texas, asking whether content moderation is “anything more than a euphemism for censorship”.
Although six of nine Supreme Court justices were appointed by Republicans, the reservations expressed by several conservative justices on Monday suggest the Florida and Texas laws are unlikely to stay on the books unchanged.
Florida and Texas passed the laws after Facebook and X, formerly known as Twitter, banned former US President Donald Trump over his posts about the January 6, 2021 storming of the US Capitol by his supporters.
Both laws are on hold pending the Supreme Court’s decision, which is expected by the end of June.