But in the nearly three years since those laws were passed, the political tide on social media has also turned, largely in favor of conservatives. Elon Musk, a self-described “free speech absolutist,” bought Twitter and then renamed it X, transforming it from a more closely monitored forum to a loosely policed battle royale.
Musk allowed Trump to return to Twitter at the end of 2022, as did Rep. Marjorie Taylor Greene (R-Ga.) and other far-right figures who had been banned. Meta reinstated Trump on Facebook and Instagram in early 2023; YouTube let him come back in March 2023.
And an ecosystem of conservative-leaning apps has grown: Trump launched his own platform, Truth Social, and far-right sites like Parler and Rumble gained popularity.
“We’re in a different place now,” Nu Wexler, a technology consultant who previously worked at Twitter, Facebook and Google, told POLITICO. “You could argue that the Texas and Florida laws are no longer really necessary because conservatives now have more options for social platforms.”
Wexler said the platforms have not acted because of any legal requirement, “but in response to political pressure and this lingering anxiety that tech companies have that somehow they’re going to piss off conservatives.”
Former Florida state Sen. Ray Rodrigues, one of the Republican authors of the Florida law, agreed that social media has once again become friendlier to conservatives. “We are now seeing less rig eviction,” he said.
He attributes much of the change to Musk’s acquisition of Twitter, but Rodrigues took some of the credit for helping force companies to open up, saying that platforms other than Twitter have only changed their behavior because of the “possible backlash.” a Supreme Court ruling that disrupts their industry. .”
He still maintains that his Florida law should be upheld to avoid setbacks.
The cases that will be heard on Monday… Moody v. NetChoice and NetChoice v. Paxton — arise from challenges from the tech industry’s main lobbyists, NetChoice and the Computer and Communications Information Association. They sued both Texas and Florida shortly after the laws were passed, saying the measures violate tech platforms’ First Amendment rights to editorial discretion by forcing them to post content that violates their rules.
Conservatives’ replatforming on social media sites shows how “absurd” the state laws were to begin with, said Carl Szabo, vice president and general counsel at NetChoice. He said companies should be able to act in their own interests in a free market. “No government entity should be allowed to decide what expression is or is not allowed on the Internet.”
Legal experts largely expect the social media companies to prevail, and both laws have already been stayed by lower courts. The Supreme Court is considering them after federal circuit judges reached opposite conclusions about the constitutionality of the laws: the 11th Circuit largely struck down Florida’s law, and the 5th Circuit sided with Texas.
“There is no right answer if you have to try to comply with the rules by hosting this legal but horrible content,” Szabo said. He argues that companies would be forced to publish offensive content that violates their policies, such as Nazi propaganda and terrorist content, which could disrupt their advertising business models.
If upheld, the Texas law would prohibit platforms from censorship based on viewpoint, with exceptions for inciting violence, criminal activity and child exploitation. Florida law carries steep fines of $250,000 per day for banning candidates at the state level and $25,000 for local candidates.
The laws became lightning rods for the national debate over free speech, highlighting the tension between social media platforms’ obligations to enforce security and allow broad, open exchanges of ideas.
The restoration of many far-right figures has taken some oxygen out of that debate. But some Republicans are still fiercely waging a fight over what they see as censorship of their views by the tech industry.
President of the judiciary of the House Jim Jordan (R-Ohio) has been subpoena former White House officials in a year-long investigation that alleges the Biden administration forced platforms to censor claims about the 2020 election and Covid-19. And next month the Supreme Court will hear a case… Murthy v. Missouri – from GOP-led states that also allege that President Joe Biden’s team violated the First Amendment by bullying platforms to censor speech.
“The story is much bigger than what happened in 2021,” said Adam Candeub, Trump’s former acting deputy commerce secretary, who filed an amicus brief in the cases supporting the states’ arguments. “It’s about whether a democracy can tolerate or survive when you have a small group of businesses that can essentially put their thumb on the scale.”
Even if the Supreme Court strikes down the Texas and Florida laws, the breadth of the ruling could determine the fate of existing and future state laws seeking to regulate technology companies. States have passed dozens of laws regulating technology related to children’s online safety in recent years, four of which NetChoice is currently challenging over claims that they also violate the First Amendment.
A bipartisan group of more than 20 state attorneys general even asked the court to “make clear” that they can regulate social media as long as their laws are consistent with the First Amendment.
Daphne Keller, an Internet law professor at Stanford Law School, said the justices could write a narrow ruling saying the platforms won. “It’s not that they have to absolutely close the door on all future laws, but they don’t give any kind of playbook for how another law might survive review,” she said.
Ultimately, no matter how the court rules, states will likely continue to pass laws that seek to control the technology. NetChoice’s Szabo wants a court ruling to clarify that platforms’ speech rights are constitutionally protected.
“To the extent that any state or government entity thinks that the First Amendment does not apply to websites or that you can simply sneak around the First Amendment, this should make it abundantly clear that the First Amendment is here and protects all of us,” he said.