Texas and Florida aren’t faring so well in the Supreme Court’s big NetChoice social media case

Yesterday saw the first oral arguments in the U.S. Supreme Court regarding the constitutionality of state laws that aim to limit the ability of social media companies to moderate content on their platforms.

In the red corner, we have Texas and Florida, whose lawmakers think content moderators are biased against conservatives and want to force the platforms to carry such voices. In the blue corner, we have NetChoice and the Computer and Communications Industry Association, both representatives of a social media sector that wants to retain the right to moderate content as it sees fit. And while the battle is at an early stage—final opinions may be a few months away—it doesn’t look like the states are faring very well.

At the hearing, the justices seemed deeply skeptical about the rationale behind the laws, the enforcement of which is currently blocked by lower courts. And despite the fact that the laws are largely designed to protect conservative voices from suppression, some of the biggest pushback is coming from conservatives who collectively hold a supermajority on the court.

Here’s Justice Brett Kavanaugh, taking Florida Solicitor General Henry Whitaker to task over his invocation of the First Amendment: “In your opening remarks, you said the design of the First Amendment is to prevent ‘suppression of speech,’ and you left out what I understand to be three key words to describe the First Amendment: ‘By the government.’”

Kavanaugh continued: “When the government censors, when the government excludes speech from the public square, that is obviously a violation of the First Amendment. When a private individual, or private entity, makes decisions about what to include and what to exclude, that’s protected, generally, editorial discretion, even though you could view the private entity’s decision to exclude something as, quote, ‘private censorship.’”

In a similar vein, Justice Amy Coney Barrett asked of a hypothetical example involving TikTok’s algorithmic promotion of pro-Palestinian over pro-Israeli posts: “If you have an algorithm do it, is it not speech?” Chief Justice John Roberts had similar concerns, telling Texas Solicitor General Aaron Nielson: “What the government is doing here is saying, ‘You must do this. You must carry these people. You’ve got to explain if you don’t.’ That’s not the First Amendment.”

Of course, not all the conservative justices were as skeptical—Samuel Alito and Clarence Thomas in particular said they saw content moderation as a euphemism for censorship. But with liberal justices Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor all suggesting the state laws are overbroad and/or echoing concerns about incompatibility with the First Amendment, Texas and Florida seem to be in trouble.

However, as Vox’s Ian Millhiser points out, the excessive broadness of the state laws may save them, for now. That’s because they arguably also impose must-carry obligations on other kinds of online services, like Uber and Gmail, whose activities aren’t as obviously protected by the First Amendment. As the NetChoice challenges to the laws are also broad, demanding that the laws cannot be applied to anyone, Millhiser argues that the court may “reinstate the two state laws, at least temporarily.”

Even if that doesn’t happen, the court still may not leave Big Tech with the assurance that all its activities are shielded under the First Amendment—something that the Biden administration, which largely sides with NetChoice, is keen to avoid. Notably, apart from forcing social media companies to carry certain content, the laws in question would also force them to be transparent about their content moderation, which is a notion that enjoys more support across the ideological spectrum.

As Cornell University legal professor James Grimmelmann told the Guardian: “I would predict that the court will issue relatively narrow rulings that make it clear that the most restrictive portions of the state laws are unconstitutional, and then let litigation play out to determine whether other provisions of these laws—or of other future laws—are constitutional.”

The future of American internet regulation probably won’t be settled anytime soon. More news below.

David Meyer

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This story was originally featured on Fortune.com