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February 26, 2024

Supreme Court Prepares to Hear First Amendment Case

Every now and again, what is known as a “landmark” case comes before the Supreme Court, and we have one now.

On Monday, the court was scheduled to hear arguments on cases regarding legislation passed in Florida and Texas that are being litigated.

Both cases center around the rights of social media companies to censor content.

Big Decision

So, we all know that since 2016, the rules of censorship changed considerably among social media outlets.

I can tell you firsthand that I saw a significant reach decline after Trump was elected to office on both Facebook and what is now called X.

The question at hand will be how to classify big tech, which will decide if they have the ability to decide what content goes on their platforms.

Texas and Florida are arguing against the sites having the ability to remove posts and ban content creators.

The Texas law managed to make it through the courts with the backing of Governor Abbott, but the Florida law hit a snag in the lower courts.

The cases, NetChoice v. Paxton and Moody v. NetChoice, will set the precedent as to what powers these outlets have over the content being produced on their respective sites.

Per each state law, individuals can sue the platforms if their content is censored or removed.

This comes down to treating the outlets as publishers or utilities, even shopping centers, if you will.

The left sees these outlets as publishers, which allows them to do as they see fit without government oversight, which would include censoring content.

The right is trying to view these outlets more like a utility company, simply carrying the message to its destination.

The Electronic Frontier Foundation (EFF), a consumer advocacy group, is arguing that if the laws are allowed to remain in place, it will lead to some fairly crazy outcomes, as trollers and those spreading fake news will then be permitted to sue.

Senior Staff Attorney and Civil Liberties Director at EFF, David Greene, stated, “Allowing social media sites to be free from government interference in their content moderation ultimately benefits internet users.

“When platforms have First Amendment rights to curate the user-generated content they publish, they can create distinct forums that accommodate diverse viewpoints, interests, and beliefs.”

My gut feeling here is that the court is going to classify them as publishers, citing the need to moderate content that is hateful or just flat-out false.

It will take two conservative justices to agree these outlets are publishers, so the key, as usual, is Supreme Court Justice Roberts.

At least one Trump-appointed justice has crossed over in most of these types of rulings with Roberts, so don’t be surprised to see a 5-4 or 6-3 ruling on this matter.

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