Freedom to Tweet or to Delete? Supreme Court Considers the Legality of Social Media Bans

Supreme court with social media logos over it

For the second time in two years, Texas House Bill 20 (HB 20) was re-heard in the Supreme Court on Feb. 26. The controversial law essentially prohibits deplatforming on social media, or as supporters of the Bill call it, “viewpoint discrimination.”

The Republican-backed law seeks to limit tech companies’ content moderation practices. Supporters of the law argue that banning individuals with certain political beliefs from social media contradicts the constitutional First Amendment right to freedom of expression. 

Opponents of the law argue that social media platforms should operate like news outlets. Aka, they should have editorial discretion and First Amendment protection to decide what to allow on their sites.

Similarly, a Florida censorship law enacted in 2021, Senate Bill 7072, prevents social media platforms from banning or deplatforming political candidates. The Supreme Court also considered that Florida law on Monday.

Judge Andrew S. Oldham, a Court of Appeal Justice who voted in favor of HB 20, noted the difference between the two laws. While Florida’s law bans all censorship of some speakers, HB 20 bans some censorship of all speakers.

Oldham and others in the Court of Appeal initially voted in favor of HB 20. But this didn’t last, because the Supreme Court reinstated an injunction that prohibited the law from coming into effect. 

This meant that HB 20 joined the Florida law in the “shadow docket.” But this was always designed to be a temporary solution before the full hearing that’s going on right now.

While these bills are only state-wide, they will set some of the first precedents of this creator economy era. A decision on the constitutionality of these laws will come in June. 

The decision will inform the foundations of common law surrounding content moderation, what users can and can’t post, and how that fits with the Constitution and content creators’ First Amendment rights.

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