As U.S. Supreme Court hears free speech challenges to social media laws, Paul Coble, chair of Rose Law Group technology, AI and IP departments, outlines the dangers of such cases

By Adam Liptak | New York Times

The tech industry argues that laws in Florida and Texas, prompted by conservative complaints about censorship, violate the First Amendment. The court’s decision could fundamentally alter the nature of speech on the internet.

The Supreme Court is hearing arguments in a pair of cases that could fundamentally change discourse on the internet by defining, for the first time, what rights social media companies have to limit what their users can post.

The court’s decision, expected by June, will almost certainly be its most important statement on the scope of the First Amendment in the internet era, and it will have major political and economic implications. A ruling that tech platforms like Facebook, YouTube and TikTok have no editorial discretion to decide what posts to allow would expose users to a greater variety of viewpoints but almost certainly amplify the ugliest aspects of the digital age, including hate speech and disinformation.

That, in turn, could deal a blow to the platforms’ business models, which rely on curation to attract users and advertisers.

  • The justices are encountering the difficulty of applying existing laws and standards to social media sites, which operate at an immense scale and have automated many of their decisions. That has also been a challenge for lawmakers in Congress for many years. Despite bipartisan criticisms of the tech platforms, Congress has passed almost no new laws governing their sites.


“These cases represent the greatest threat that technology-enabled free speech has ever seen.  The First Amendment has always been interpreted to protect editorial decisions about what non-government entities publish on their own platforms.  Private companies are not required be indentured mouthpieces for their customers.  Newspapers are not required to publish every op-ed that they receive and talk-radio hosts are free to stop an interview if they don’t like what is being said. Editorial decisions by content providers are the very essence of free speech.  The 5th Circuit’s approach is particularly dangerous as it sets up a multi-tiered system where the First Amendment applies differently depending on who is speaking.  The goal of the First Amendment is to avoid exactly that type of favoritism.” -Paul Coble, chair of Rose Law Group technology, AI and IP departments

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February 2024