In 1887, an English Catholic historian and politician – Lord Acton — was waging a futile challenge to the idea that the Pope is infallible.  He complained of the Pope’s authority in a letter to an Anglican bishop, writing: “Power tends to corrupt, and absolute power corrupts absolutely.”  The Lord is best remembered for those words.

That stern admonition is a useful reminder of one of the most basic tasks of government: finding ways to restrain great concentrations of power.  In America, that can be complicated when a powerful institution has been given special legal protection by Congress and has fundamental rights under the Constitution.

The Supreme Court will deal with that dilemma on Monday as it ponders how far government can go to control the immense, almost unchecked power of the Internet – especially, the social media giants Facebook, YouTube and X (formerly Twitter)?  Congress has been struggling with that for forty-some years and some impatient states have lately tried to step in to check that power.  Does the Constitution’s First Amendment allow them to do so?

There is a special challenge for the Court in two hearings tomorrow: it will try to look past the political reality that the restraints imposed by state laws were mostly motivated by Republican lawmakers’ resentment that social media, they said, was cancelling or compromising conservative voices.

Monday’s back-to-back hearings:  Moody v. NetChoice LLC, a Florida case, and NetChoice v. Paxton, a Texas case.  They are being heard separately, each scheduled for one hour but likely to run longer.

Background:  Historians seem to agree that the Internet got its real start in early 1983, when the digital electronic networks that already existed figured out a way to talk to each other – that is, across the INTERNET.   In the four decades since, the Net has grown by leaps and bounds and, in the process, has been subjected to withering criticism: for exploiting children, for sex trafficking, for promoting terrorism, for election interference – any kind of misinformation or false information that one can imagine.

The Internet’s critics regularly call for reform but they frequently wind up frustrated because the social media has been insulated for more than a quarter century from one of the normal modes of legal accountability: lawsuits.

In 1996, as part of a federal law intended to protect children from harmful material online, Congress included so-called “Section 230.”  That is shorthand for the provision that Congress meant to give the still-experimenting Internet companies some space to develop, hoping in the process to have them devise ways to “moderate” the content so that it does not morally corrupt the nation’s children.

Section 230 specifies that, in any legal action against an Internet company, “no provider of an interactive computer service shall be treated as the publisher or speaker of any information” that had been provided to it by another source of digital content.  That has been a legal shield unlike any that protects other major industries that serve consumers.

In addition to that protection, the Internet gained more in 1997 when the Supreme Court defined their rights of free speech under the Constitution’s First Amendment.  That decision said that online platforms are to be judged by the same standards as traditional forms of expression – newspapers, for example.

Before the Court on Monday is the abiding criticism of conservative activists that the social media platforms regularly censor or discriminate against voices and causes of the Right, that they are tools of the Left.  Donald Trump pushed this criticism the furthest when, as President in May 2020, he issued a sweeping Executive Order that fundamentally challenged Section 230, instructing federal agencies to find ways to regulate the practices of digital platforms.

His Justice Department also was working on ways to get Congress to pare down the protection of Section 230.  Meanwhile, the Executive Order promptly drew constitutional challenges and was never fully implemented.  When President Biden took office, he cancelled it completely.  That returned the issue of potential reform to the halls of Congress, where it has mostly stalled.

A role for the states?  The same conservative grievance that prompted President Trump to act has recently led Republican-controlled state legislatures to attempt to rein in social media power.  In 2021, first Florida and then Texas led the way in passing new restrictions under the theory that they were protecting their residents’ right to the free flow of information.

(The Constitution’s protection of free speech was originally applied as a check only on the federal government.  However, in the 1925 decision in Gitlow v. New York involving censorship of a Socialist pamphlet, the Court extended the free speech guarantee to check state and local government, too.)

The 2021 state laws were challenged by two groups that represent social media and other online platforms: NetChoice LLC and the Computer and Communications Industry Association.  Their lawsuits have now produced a split among federal appeals courts on the First Amendment issue.   The state laws do not target Section 230 directly; instead, they attempt control through state regulatory agencies.

The state law restrictions at issue:  The Florida and Texas laws differ in some detail, but generally take these same approaches:

• They limit how social media operators can choose whether and how to present to the public information posted to them by users, barring censorship (such as taking away access or disfavoring some points of view) and limiting a wide array of editing and content-selection techniques.
• They require the operators to explain in detail to individual users their choices about excluding or modifying the content that they offered, a mandate that could apply to millions of bits of data they receive daily.
• They require operators to report to the state the details of their selection and editing policies, to report any changes to the state, and to tell those who supplied information how many other users viewed what was supplied.

The Supreme Court has already been drawn into the controversy over those requirements.  Last May, the Court split 5-to-4 in putting back into effect temporarily an order by a federal judge blocking the state of Texas from enforcing its law, pending further action in lower courts.  The majority did not explain its reasons, but three of the four dissenters argued in a written opinion that it was far from clear at that stage that the law did, indeed, violate the First Amendment.

Three separate appeals – one by Florida state officials and two by the online business groups – reached the Supreme Court.  The Justices, apparently somewhat unsure of how to sort out those three, asked the Justice Department’s Solicitor General to offer advice (the Court often treats that office as a helpful, outside counselor).  That office supplied new versions of four questions at issue, and argued that only two of those were worthy of the Court’s review at this time.  In September, the Court took that advice, agreeing to hear two of the three appeals and to focus only on the two issues in the form suggested.

The questions before the Court:  Does it violate the First Amendment’s free-speech guarantee for a state to impose controls on how social media platforms select, edit and present information supplied by others?  Does it violate free speech to require those platforms to explain to individual users why they excluded or modified the information they had supplied?

Those are the questions that the Justices agreed to hear, on the advice of the Solicitor General, because the two lower appeals courts had disagreed on the constitutionality of those limitations.  The Court refused to rule on two other issues: the constitutionality of the duty to explain their policies to the state (those, the Solicitor General said, were not the focus of the challenges in lower courts and are not fully developed here), and a separate question posed by NetChoice and the industry groups that the entire state laws in Florida and Texas are unconstitutional because they were motivated by a desire to discriminate based upon what the users were allowed or not allowed to put on the platforms – viewpoint bias.  The Solicitor General said lower courts had not dealt with that issue.

Significance:  This is, by far, the most important Digital Age controversy the Court has yet to examine.  Its importance is further enhanced by the likelihood that the constitutional interpretation applied here to state laws will also reach any future federal law, if Congress is ever able to make up its mind to pass such measures.

The Solicitor General cautioned the Court that, even limiting the review to two questions, it was actually going to be confronted with a dozen discrete issues on how the social media platforms operate and how government controls would affect what computer users see and hear.

By scheduling two separate hearings, the first on the Florida law and the second on the Texas law, the Court may be able to examine more carefully the differences – although they are not greatly different – between the two laws.

In one specific way, this is another case that has reached the Supreme Court with Donald Trump a central figure, at least in the background of this controversy.  It was his exclusion from Twitter (now called X) after the violent attack on the U.S. Capitol over his defeat in the 2020 election that was partly responsible for conservative state lawmakers to take action to control social media.

But it is not too much to say that the future of the Internet – how it works and how government seeks to restrain its claimed excesses – will depend upon the Justices’ reaction in these cases.  This is a constitutional dispute of the highest order, and the votes of nine Justices will likely make the difference.

The states will be represented in each by a state government lawyer, and NetChoice and the industry groups will be represented by two lawyers, appearing in both cases and splitting their time – one for the industry, and Solicitor General Elizabeth Prelogar for the federal government, which is aligned on that side of the cases.  (It may seem odd that the Court relied on the Solicitor General to help shape this review and now will hear from her on how to rule, but that is an illustration of the dual role of her office, informally called “the Tenth Justice.”)

The Court will broadcast “live” the audio (no video) of these hearings on its homepage, supremecourt.gov  To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of each case, on C-Span TV at this link: cspan.org/supremecourt