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OPINION

When it comes to Twitter, Supreme Court is tying itself into knots

The court buys time on challenges to laws in Texas and Florida seeking to impose state-level control over Twitter’s content moderation practices. But the court can’t avoid this issue forever.

In December, Elon Musk's Twitter dissolved its Trust and Safety Council, the advisory group of nearly 100 independent civil, human rights and other organizations that the company formed in 2016 to address hate speech, child exploitation, suicide, self-harm, and other problems on the platform.Jeff Chiu/Associated Press

It’s understandable that the Supreme Court, fresh off its own high-profile failure to find the leaker of a draft of last year’s opinion overturning abortion rights, would be wary of jumping into another controversy so soon. That’s especially true if that controversy highlights the court’s hypocrisy.

Perhaps that’s why it chose to kick the can down the road this week in challenges to laws in Texas and Florida seeking to impose state-level control over Twitter’s content moderation practices. Republican lawmakers in these states argue that the laws are meant to address what they claim is unfair censorship of conservative views on social media platforms.

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But those challenging these state laws say they not only run afoul of the First Amendment right of social media platforms to determine what speech it hosts, but they also would put state lawmakers in the position of setting nationwide rules governing what content Twitter can ban.

The issue has divided lower appellate courts, so the Supreme Court was asked to step in. But this week the justices asked for the views of the Justice Department on the matter. Here’s a bit of info: The court doesn’t need the Justice Department’s views. It may not even want them — but the request buys the court some time and ensures the challenges won’t even be argued until next term, or this fall, at the earliest.

The court can’t avoid this issue forever, and the stakes are only getting higher. In just the couple of months since the court was asked to weigh in on the laws’ constitutionality, a lot has happened in the Twittershpere. Elon Musk, who doesn’t seem to have a particularly great grasp on how the First Amendment works, took Twitter over in a vow to make it a public square. Spoiler alert, it’s not. It’s a private company, which is why he was able to buy it.

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Also, former president Donald Trump, whose Twitter account was suspended after he used it to help foment an insurrection, may be making a Twitter comeback. Trump didn’t immediately return to the platform after Musk restored his account in November, but as the 2024 presidential election nears, he could opt to use it instead of his Truth Social Platform as soon as June, when his exclusivity agreement there expires. Given that Trump lied during his presidency upward of 30,000 times, according to a tally by The Washington Post, and is the lead spreader of lies about election fraud that continue to threaten our democracy — that’s a problem.

But not for Republicans in Texas and Florida. And it probably won’t be a problem for the Supreme Court’s conservative majority, made up of people who push the idea that conservative principles are under attack.

Take Justice Samuel Alito, who, after issuing the Dobbs decision that overturned Roe v. Wade last year, went on a speaking tour of conservative organizations, saying religious freedom and free speech rights of those with conservative views are under attack. In one Heritage Foundation lecture, he called the state of free speech on law school campuses “abysmal” and “dangerous” because of student protests of conservative speakers.

Alito, among others on the bench, may then have a sympathetic ear to the state lawmakers seeking to limit the control Twitter and other social media platforms have to block posts by Trump and others — even if that leads to the spread of misinformation, propaganda, hate, and conspiracy theories.

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After all, the conservatives on the court seem poised to side with a wedding website creator who wants to deny her services to same-sex couples, claiming a free speech right to do so. During oral arguments last month, justices in the court’s majority seemed to agree.

But wait a constitutional minute: The wedding website creator is essentially seeking to exercise her First Amendment right not to speak. She doesn’t want to create same-sex wedding websites and argues that a Colorado law barring discrimination on the basis of sexual orientation would force her to do just that.

Isn’t that exactly what the Texas and Florida laws do to Twitter and other social media platforms? Didn’t the Supreme Court in Citizens United v. Federal Election Commission hold that they, as corporations, have First Amendment rights like people? So shouldn’t they, too, have a right not to host content they don’t want to host, under the court’s own reasoning?

My questions of course are rhetorical, because this court’s majority isn’t really into constitutional consistency. Last term alone, it embraced the right of “the people of the various states” to regulate abortion as they see fit while simultaneously striking down the ability of states to regulate guns as they see fit.

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I expect the court will tie itself in the same kind of constitutional knots when it’s time to rule on how the First Amendment functions on social media. But we will all have to wait a little longer to find out exactly how.


Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com. Follow her on Twitter @KimberlyEAtkins.