For almost four hours on Monday, a law from the US states of Florida and Texas was heard before the US Supreme Court (SCOTUS). They want to vehemently interfere with the freedom of online platforms to decide what content they want to host or what content they want to financially reward. This would have far-reaching effects on the World Wide Web, even beyond the borders of the two US states.
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The industry associations Netchoice and CCIA (Computer and Communications Industry Association) are fighting the laws, arguing that they violate the right to free speech as enshrined in the First Amendment to the US Constitution. It also includes the right not to be forced to say something you don't want to say. The Florida law has already been declared temporarily inapplicable by a US federal district court; the Supreme Court itself had to do this for the Texas law.
The Supreme Court should now clarify whether or to what extent the laws violate the US Constitution. The industry associations are calling for a complete repeal, and the governments of Florida and Texas are defending their laws. The US federal government argues for an interim solution: the ban on any moderation is inadmissible, but regulations on transparency for terms of use and moderation statistics as well as options for objections for affected users are permissible.
The majority of judges see laws as problematic
At the hearing, the majority of the Supreme Court judges doubted that states can force online platforms to host certain content or people – at the same time, they were critical of the market power of individual providers. Chairman John Roberts underlined the key question: Who should decide which voices can be heard on a platform – the government or the private platform operators? The First Amendment of the US Constitution weighs heavily in favor of private companies, Roberts explained. The provision prohibits the government, but not private individuals, from exercising censorship.
Justice Samuel Alito wanted to know whether “content moderation” was just a euphemism for censorship. Netchoice lawyer Paul Clement was not at a loss for an answer: “If the government does it, it could be a euphemism for censorship. If a private individual does it, content moderation is a euphemism for editorial discretion.”
Alito and his fellow judge Sotomayor have indicated that they are considering sending the cases back to lower courts because the available court records leave too many questions about the facts unanswered. In fact, in regulatory review proceedings, it is not the task of the US Supreme Court to raise the facts. Lower courts are called upon to do this. The Supreme Court only decides certain legal questions based on the facts established there.
Tide Pods came up repeatedly. There are always waves of dangerous pranks or so-called challenges in which users are encouraged to engage in dangerous behavior, be it driving blindly, using a book as protection against a firearm projectile or eating detergent – the famous Tide Pod Challenge. YouTube banned such videos five years ago, but under the new Texas law it is no longer allowed to delete such posts or reduce their distribution.
Free travel for Nazis
Even anti-Semitism or the glorification of terrorism will no longer be allowed to be deleted by large social networks in Texas, no longer provided with notices and no longer exempt from financial distributions for particularly frequently viewed postings. The Texas representative suggested that the platform operators could, for example, ban any mention of Al Qaeda. Then both votes for and against the terrorist organization would be affected and the law would be satisfied.
That's exactly why the law would lead to many topics being blocked on social networks, argues Netchoice. However, this would make the offers less attractive for both users and advertising customers. The European Union’s Digital Services Act (DSA) was also discussed. A judge wanted to know why the industry associations are also resisting transparency regulations when they follow similar requirements in the EU. Netchoice said that the Texas requirements would involve a hundred times more effort than the EU regulations.
Netchoice then celebrated the unusually long hearing as a success. The representatives of the two US states were unable to defend their law as constitutional. A Supreme Court decision is expected in June – but it could be limited to ordering lower courts to hear more facts.