Supreme Court demonstrated last year<\/a> with a different pair of social media cases, they may not get it.<\/p>\nOn Monday, justices on both sides of the political spectrum sounded skeptical about the pair of state laws. In oral arguments, Justice Sonia Sotomayor called the cases \u201codd,\u201d warning that their broad nature could have unforeseen impacts.<\/p>\n
\u201cIt seems like your law is covering just about every social media platform on the Internet, and we have amici who are not traditional social media platforms, like smartphones and others who have submitted amici briefs, telling them that readings of this law could cover them,\u201d Sotomayor said, referencing the Florida law.<\/p>\n
\u201cThis is so, so broad, it\u2019s covering almost everything. But the one thing I know about the Internet is that its variety is infinite.\u201d Sotomayor pointed to the online marketplace Etsy as a less obvious example of a website that could be negatively impacted by state laws designed to dictate what social media companies can do.<\/p>\n
Addressing Florida Solicitor General Henry Whitaker, Justice Brett Kavanaugh brought up the First Amendment \u2014 but not in a way sympathetic to the state\u2019s argument.<\/p>\n
\u201cYou said the design of the First Amendment is to prevent \u2018suppression of speech,\u2019 Kavanaugh said. \u201cAnd you left out what I understand to be three key words in the First Amendment or to describe the First Amendment, \u201cby the government.\u201d<\/p>\n
Even Justice Neil Gorsuch, who seemed more sympathetic to critical arguments against the social networks, pointed to Section 230, a longstanding law that protects internet companies\u2019 content moderation decisions, noting that it likely \u201cpreempts\u201d the state limits on social media moderation.<\/p>\n
Not all of the justices seemed to side with the tech industry. Justices Clarence Thomas and Samuel Alito appeared to find the states\u2019 arguments more compelling than their peers, with Alito at one point asking if the idea of content moderation was \u201canything more than a euphemism for censorship.\u201d<\/p>\n
Monday\u2019s hearing provided some clarity on where the majority of justices seem to stand now, but anything can happen \u2014 including nothing. A handful of justices, including Justices Sotomayor, Gorsuch, Barrett and Thomas expressed uncertainty about the way the cases were brought to begin with.<\/p>\n
\u201cIt\u2019s called a facial challenge, because on the face of the law a challenger alleges what the legislature has done is unconstitutional,\u201d Paul Barrett, NYU adjunct law professor and Deputy Director of NYU Stern\u2019s Center for Business and Human Rights, told TechCrunch. \u201cIt\u2019s a case where a party, in this case industry trade groups, go to court, even before the law goes into operation. And they say to the trial judge, \u2018this law is unconstitutional, no matter how it gets applied.\u2019<\/p>\n
\u201cThey asked the judge at that point for an injunction that says the law is not to go into effect. By doing that, there isn\u2019t the usual supply of facts and figures and experience and so forth, there isn\u2019t testimony that allows an appellate court to see how the law works in practice.\u201d<\/p>\n
The Supreme Court could issue a decisive ruling any time between now and when the court\u2019s term ends in June. Or it could decline to rule on the issues at hand and opt to kick the cases back down to lower courts for a full trial, a process that could take years. \u201cSupreme Court cases can fizzle in this way, much to the frustration in most cases to other parties,\u201d Barrett said.<\/p>\n
Either way, the highest court in the land will have to face the internet age head-on eventually. Many of the relevant legal precedents deal with cable TV, newspapers or utility companies \u2014 not internet businesses with many millions or even billions of users.<\/p>\n
\u201cIt\u2019s clear that the Supreme Court needs to update its First Amendment jurisprudence to take into account this vast technological change,\u201d Barrett said. \u201c\u2026 The Supreme Court often lags behind society in dealing with these kinds of things, and now it\u2019s time to deal with it.\u201d<\/p>\n<\/p><\/div>\n
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