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1 1 (February 20, 2024)

handle is hein.crs/goveojf0001 and id is 1 raw text is: CongressionaI ~ Research Service State Social Media Laws at the Supreme Court February 20, 2024 On February 26, 2024, the Supreme Court is to hear oral argument over the constitutionality of Florida and Texas laws that restrict online platforms' ability to moderate user content. The U.S. Courts of Appeals opinions in these cases present two different views of the First Amendment rights at issue. The Eleventh Circuit concluded that parts of the Florida law were likely unconstitutional because they unduly restricted the editorial judgment of the covered platforms. This decision was consistent with the way a number of trial courts have characterized the First Amendment rights of websites that host user speech. In contrast, the Fifth Circuit upheld the Texas law as constitutional, saying the covered platforms were engaged in censorship, not protected speech. A Supreme Court ruling in this case could have significant implications for Congress as it considers whether and how to regulate online platforms. This Legal Sidebar first discusses the relevant First Amendment principles at stake, then explains the background of the two cases and the parties' arguments at the Supreme Court. Free Speech Protections for Speech Hosts The First Amendment prevents the government from unduly infringing speech, including the speech of private companies. The Supreme Court has long recognized that companies may be engaged in protected speech both when they create their own speech-which can include activities like designing a website for customers-and when they provide a forum for others' speech. When a private entity hosts speech, it may exercise editorial discretion over the speech and speakers in the forum. For instance, in Miami Herald Publishing Co. v. Tornillo, the Supreme Court struck down a state law requiring newspapers to publish certain pieces from political candidates. The Court reasoned that newspapers exercise editorial control and judgment over what material to print and how to present the content, and ruled that the First Amendment prevented the government from regulating this crucial process. The Court has recognized these protections for editorial judgment outside the context of traditional media. To take one example, in Hurley v Irish American Gay, Lesbian & Bisexual Group of Boston (discussed in more detail in a CRS podcast), the Court held that a parade organizer's decisions about who could march were expressive even though the parade as a whole did not communicate one coherent, particularized message. The Court said the organizer's decision to include a parade unit suggested the organizer would be celebrating that group's message, and accordingly, the First Amendment protected the decision to exclude a certain group. Federal trial courts have applied these principles to online speech, citing the First Amendment to dismiss private lawsuits that have challenged websites' editorial decisions about what content to publish. Congressional Research Service https://crsreports.congress.gov LSB11116 CRS Legal Sidebar Prepared for Members and Committees of Congress

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