Despite conservative frustration with heavy-handed content moderation by big social media companies, Republicans must come up with better solutions than government oversight

In an era where the internet serves as the forefront of public discourse, the Supreme Court’s examination of Florida and Texas’ ambitious social media laws marks a critical juncture in the ongoing debate over free speech and the role of tech giants in moderating content. The legislation, enacted by GOP lawmakers in both states, aimed to curtail the obvious bias against conservative viewpoints by limiting the ability of platforms like Facebook and YouTube to remove political or controversial content.

But the method for doing so – onerous legislation that tramples rather than protects free speech rights – has, thankfully, run into significant legal and constitutional challenges. Both states crafted laws with the intention of preventing social media platforms from removing or censoring content based on political or ideological perspectives by imposing stringent restrictions on the ability of companies like Facebook, Twitter, and YouTube to moderate content that they host. By limiting the platforms’ capacity to delete or suppress posts, the legislation sought to ensure a broader range of political discourse online, challenging the autonomy of social media giants in curating content on their services.

This week’s hearing before the US Supreme Court exposed significant flaws in Republican thinking on the matter as conservatives rightly struggle to reconcile the principles of free speech with the realities of the digital age and corporate control over mass communication platforms.

During a session that spanned nearly four hours, the nation’s highest court saw justices from across the ideological spectrum signaling a clear reluctance to allow the immediate implementation of these laws, citing concerns over their compatibility with the First Amendment. The core of the debate centered around whether state governments possess the authority to dictate the operational policies of private companies, especially in terms of content curation. Chief Justice John Roberts highlighted the intrinsic conflict between governmental intervention and the autonomy of social media platforms, suggesting that the First Amendment leans heavily in favor of the latter.

The courtroom discussions revealed a palpable uncertainty among the justices regarding the appropriate response to the challenges posed by these laws. Despite this, there was a clear inclination towards maintaining the status quo, preventing the laws from taking effect until a more thorough examination could be conducted in the lower courts.

Legal experts and observers, including Carl Szabo, Vice President and General Counsel of NetChoice—a trade association representing major tech companies—viewed the proceedings as a “really good day for free speech.”

“You can be frustrated, I am frustrated, too,” said Szabo, expressing his view on some of the ways that social media companies have chosen to restrict speech in the past. “But Republicans are digging their own grave when it comes to free speech.”

Szabo noted that if the Supreme Court were to let the laws stand, then other social media websites, such as Etsy.com, for example, would have no control over the types of items that users sell there, including explicit or offensive content.

“Right now they have a policy of limited or no political content,” Szabo noted. “These laws would force them to accept vendors who sell sweaters with swastikas on them.”

He suggested that while Republicans are rightly frustrated with heavy-handed content moderation, conservatives should never be in favor of imposing government restrictions that essentially do the same thing in reverse – noting that the Biden Administration could then use the power of the federal government to regulate speech.

Szabo also shed light on the skepticism faced by the states’ legal theories, emphasizing the potential for the regulations to infringe upon First Amendment rights. The broad language of the laws could have far-reaching implications, affecting platforms with minimal political content and raising absurd scenarios where speech could be unduly restricted.

The bottom line for Republicans is that it appears as the the U.S. Supreme Court, dominated by conservatives, appears likely to strike down both the Florida and Texas social media laws. And thank goodness. Republicans can do better, but it requires a private sector solution, not the iron fist of big government.