Marathon session of the US Supreme Court on "censorship" laws

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For almost four hours on Monday, the US Supreme Court (SCOTUS) heard arguments on a law from each of the US states of Florida and Texas. They want to vehemently intervene in the freedom of online platforms to decide what content they want to host or what content they want to reward financially. This would have far-reaching consequences for the World Wide Web, even beyond the borders of the two US states.

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 of the US Constitution. It also includes the right not to be compelled to say something you don't want to say. The Florida law has already been declared provisionally inapplicable by a US federal district court, while the Supreme Court itself had to do the same for the Texas law.

The Supreme Court will now clarify whether or to what extent the laws violate the US Constitution. The industry associations are calling for the law to be repealed in its entirety, while the governments of Florida and Texas are defending their laws. The US federal government is arguing for an interim solution: the ban on all moderation is unlawful, while provisions on transparency for terms of use and moderation statistics as well as appeal options for affected users are permissible.

Majority of judges see laws as problematic

At the hearing, the majority of 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 emphasized the key question: Who should decide which voices should 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 entities, from exercising censorship.

Justice Samuel Alito wanted to know whether "content moderation" was not merely 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. When a private party does it, content moderation is a euphemism for editorial discretion."

Alito and fellow Justice Sotomayor hinted that they are considering sending the cases back to lower courts because the court records on file leave too many questions about the facts. In fact, it is not the task of the US Supreme Court to determine the facts of the case in judicial review proceedings. This is the task of lower courts. The Supreme Court merely decides certain questions of law based on the facts established there.

Tide pods have come up repeatedly. Time and again, there are waves of dangerous pranks or so-called challenges in which users are encouraged to engage in dangerous behavior, be it driving blind, 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 ride for Nazis

Even anti-Semitism or the glorification of terrorism would no longer be allowed to be deleted by large social networks in Texas, nor would they be allowed to provide notices or exempt them from financial payments for particularly frequently viewed posts. The Texas representative suggested that the platform operators could, for example, forbid any mention of Al Qaeda. This would affect both voices for and against the terrorist organization and comply with the law.

This is precisely why the law would lead to many topics in social networks being blocked in the first place, argues Netchoice. This would make the offerings less attractive for both users and advertisers. The European Union's Digital Services Act (DSA) was also discussed. One judge wanted to know why the industry associations were also resisting transparency regulations when they are subject to similar requirements in the EU. Netchoice said that the Texas requirements were a hundred times more burdensome than the EU regulations.

Afterwards, Netchoice celebrated the unusually long hearing as a success. The representatives of the two US states had failed to defend their laws as constitutional. A decision by the Supreme Court is expected in June - however, it could be limited to an order that the lower courts must gather further facts.