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Justice Elena Kagan’s lighthearted acknowledgment that she and her eight Supreme Court colleagues aren’t “the nine greatest experts on the internet” doesn’t deter them from delving into a new set of pivotal cases concerning the role of social media in our society. These cases present distinct questions about free speech, each with far-reaching implications. They underscore how social media has evolved into a contentious arena in society, where the rules are still in the process of being fully defined.
Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, notes that collectively, these cases are poised to exert a significant influence on the digital public sphere. He points out that by choosing which cases to take on, the justices are evidently eager to engage in this important discourse.
The court is set to commence its examination of these cases on Tuesday, starting with the recurring query that gained prominence when then-President Donald Trump blocked critics on Twitter: Does a public official’s act of blocking someone constitute a violation of the First Amendment of the Constitution? It’s worth noting that the officials involved in these cases have considerably lower profiles than Trump; they include members of a school district board of trustees in Southern California and a city manager in Michigan.
The fact that this issue has arisen at various levels of government underscores how elected officials are increasingly utilizing social media as a means to connect with their constituents. The Supreme Court’s ruling on whether these officials were acting in their official capacities when using social media will carry significant weight in establishing guidelines for how lower courts address similar cases.
Later in the term, extending until June, the justices will deliberate on the constitutionality of laws in Florida and Texas, championed by Republicans, that aim to prevent social media platforms from banning users for expressing contentious views. These laws were enacted during a time when Republicans were incensed by what they perceived as biased moderation decisions against conservative viewpoints. Interestingly, in these cases, it is the social media companies themselves, represented by trade groups, arguing that their own free speech rights to regulate content on their platforms would be violated.
Finally, the court will examine allegations that the Biden administration has exerted undue pressure on social media platforms to remove content that it disagrees with—a form of influence termed “jawboning.” This pertains to issues such as criticism of the government’s handling of the pandemic. Once again, the case raises free speech arguments, this time put forth by states and individuals asserting users’ First Amendment rights to post their chosen content without governmental interference.
Earlier in the year, the court addressed two other cases involving Twitter and Google. On that occasion, the court refrained from making a major ruling that could have restricted the liability protections afforded to platforms for user-generated content. Daphne Keller, an expert on internet law at Stanford Law School, observed that in those earlier cases, as evidenced by Justice Kagan’s remark during oral arguments, the justices recognized that they had ventured into a domain that was, frankly, too intricate for their initial foray into this territory.