Oral arguments in the first two instances of the three main concerns pertaining to social media’s function in society are being heard by the justices this week.
In Washington, When Justice Elena Kagan said in court in February that she and her eight fellow justices are not “the nine greatest experts on the internet,” it caused chuckles.
Despite this, the justices have nevertheless taken up a fresh set of high-stakes cases concerning social media’s role in society. These cases address various issues related to free expression and may have far-reaching effects.
The cases on the docket demonstrate how social media has developed into a divisive arena in society at large, with unclear guidelines for behavior.
According to Columbia University’s Knight First Amendment Institute executive director Jameel Jaffer, “collectively, they are likely to have quite dramatic effect on the digital public sphere.”
He said that the justices “plainly want to be part of this debate,” pointing out that the Supreme Court gets to choose which issues it takes up.
Tuesday marks the court’s first set of arguments in those cases, during which the justices will consider a recurrent query that gained attention when former President Donald Trump forbade detractors from following him on Twitter: Does a public official’s blocking of someone violate the First Amendment of the Constitution?
In the cases, public figures with considerably lesser public prominence than Trump are involved: a city manager in Michigan and members of the board of trustees for a Southern California school district.
The issue has surfaced at all levels of government, which is indicative of the growing trend of elected officials interacting with citizens on social media.
The Supreme Court’s decision on whether the officials might be sued for breaching their First Amendment rights to free speech because they posted on social media while operating in their official positions will have a significant influence on how lower courts approach similar cases.
The justices will hear oral arguments over the validity of Republican-backed laws in Florida and Texas that aim to stop social media companies from banning users for using controversial terminology later in the court’s term, which ends in June. Republicans were furious at what they saw as anti-conservative prejudice in moderation judgments at the time both legislation were passed.
In certain situations, the social media companies themselves argue—through trade associations—that it would be an infringement on their free speech rights to decide what content to accept on their platforms.
The court will also hear arguments about the Biden administration’s alleged illegal “jawboning” of social media platforms to remove content that it disagrees with. Examples of this type of coercion include criticism of the government’s handling of the pandemic response.
Once more, the case involves free speech claims; this time, the plaintiffs are states and private citizens defending the First Amendment’s guarantee of users’ freedom to post any information they choose without intervention from the government.
The court heard two other instances involving Twitter and Google earlier this year. Subsequently, the court avoided a significant decision that may have restricted the liability safeguards that platforms enjoy for user-posted content.
As demonstrated by Kagan’s remark during oral argument, Stanford Law School expert on internet law Daphne Keller said the justices in those prior instances knew they had taken up a topic that was “frankly too complicated for their first foray into this area.”
Consequently, she continued, “the justices realized what huge unintended consequences a careless ruling could have.”
Unlike several other high courts throughout the world, the Supreme Court itself does not have a social media presence, and none of the justices maintain accounts on these platforms in their official roles. While former Justice Stephen Breyer stated more than ten years ago that he was a member of Facebook and Twitter, Kagan acknowledged in 2020 that he was an anonymous lurker on the social media platform.
But over the past six years, the average age of the justices has significantly dropped, with four new justices—all of whom are currently in their 50s—replacing much older judges.
Attorneys, however, point out that the new cases do not depend on a profound knowledge of technology and instead center on a topic that the justices are well-versed in: free speech rights.
Jenin Younes, an attorney at the New Civil Liberties Alliance who represents individual plaintiffs in the jawboning case, said, “Many of these cases talk about how social media is the modern public square to try and convey to the justices, who may not be as familiar with social media, just how important this is in the present day and age.”
“I do think it can be hard for some people who don’t use it as much to grasp that this is where a lot of public discourse takes place,” she said.
Strangely, the cases make it all the way to the Supreme Court just as some industry insiders begin to assert that the social media era may already be coming to an end.
The right’s anger toward social media giants has also been slightly mitigated by Elon Musk’s acquisition of Twitter, which he has rebranded as X.
The choices of Twitter, Facebook, and other platforms to ban Trump after his attempt to alter the results of the 2020 presidential election culminated in his supporters storming the U.S. Capitol on January 6, 2021, contributed to the indignation among conservatives that led to the enactment of the legislation in Florida and Texas in 2021.
Unlike the previous Twitter administration, Musk has sided with conservative opponents of the network and let the restoration of a number of banned users, including Trump, all the while giving up on attempts to stop the dissemination of false information.
Jaffer emphasized how crucial it is for the judges to see past the current political climate and develop precedent-setting decisions that would ensure justice for all, regardless of political affiliation.
Even for those who consider it frequently, coming up with the correct answers is difficult, he admitted. These are challenging inquiries.