The Supreme Court on Monday will consider whether Florida and Texas can regulate social media to protect “conservative speech,” or instead whether Facebook, You Tube, TikTok and others have the right to liberate what appears on their sites.

This clash over the First Amendment is also accompanied by a dispute over how to characterize these popular and profitable sites. Are they private companies like a newspaper or a bookstore with complete freedom of speech to decide what material to include or exclude?

Or are these online platforms, as Justice Clarence Thomas has emphasized, better described as “common carriers,” like a telephone company with a legal obligation to transmit all speech and not discriminate against anyone based on the message?

The outcome will be closely watched in both blue and red states.

Last year the California

L

The Legislature passed a measure to ban online companies from collecting and selling data about children and teens, but it was blocked on First Amendment grounds by a federal judge in San Jose. The state’s appeal is now in the 9th Circuit Court.

The Biden administration is also facing lawsuits from several Republican states for allegedly pressuring social media sites to remove “misinformation” about the dangers of COVID-19 vaccines. The Supreme Court will hear the case next month.

The Florida and Texas laws under review by the Supreme Court stemmed from complaints that former President Trump was discriminated against or blocked by social media sites

,

including Twitter.

In 2021, Florida Governor Ron DeSantis signed his state’s “first-in-the-nation” law, saying it targeted “Big Tech censors” who “discriminate in favor of the dominant Silicon Valley ideology.

The measure was passed before billionaire Elon Musk bought Twitter and changed its name to

X,

Applies to social media sites with more than $100 million in annual revenue or more than 100 million users.

It allows lawsuits for damages for unfair censorship and steep fines if a social media site deplatforms a candidate for office, as happened for a time to Trump after he continued to spread false claims about the 2020 election.

Texas Governor Greg Abbott said “conservative statements” were under threat when he signed a broader bill into law a few months later. It says a social media platform with more than 50 million users in the United States may not censor users’ speech… or otherwise discriminate based on their views.

NetChoice and the Computer and Communications Industry Assn. sued to challenge both laws on free speech grounds, and both were stayed, including by a 5-4 order from the Supreme Court.

The South’s two federal appeals courts, through Trump appointees, took opposing positions on the issue of free speech.

Judge Kevin Newsom, speaking on behalf of the 11th Circuit Court in Atlanta, blocked the enactment of most of Florida’s laws as unconstitutional.

The First Amendment limits government actors and protects private actors, he said. Social media sites are private businesses, and simply put, with minor exceptions, the government cannot tell an individual or entity what to say or how to say it.

Judge Andrew Oldham, speaking on behalf of the 5th Circuit Court in New Orleans, upheld the Texas law on the grounds that the state wanted to protect Texans’ free speech.

Oldham, a former counsel to Abbott and a law clerk to Justice Samuel A. Alito Jr., said it’s a rather strange reversal of the First Amendment to say that social media platforms have a right to muzzle their speech.

.

…We reject the idea that corporations have a free-wheeling First Amendment right to censor what people say.

Both state measures also require social media sites to disclose how they decide to remove information or users. That part of the Florida law was not blocked by the lower courts.