Supreme Court Asks DOJ to Weigh In on Online Speech Laws

The Supreme Court of the United States has delayed its decision in a request to hear three cases that would test the constitutionality of Texas and Florida laws that propose to allow lawsuits on the basis of political censorship by online platforms. Although the cases would not be heard until the court’s next session, which extends into 2024, the laws remain blocked in the interim. Rather than deciding outright whether it will grant certiorari, SCOTUS on Monday asked the Justice Department to file the Biden administration’s position, forestalling immediate deliberations.

The cases threaten to pierce the Section 230 law, which shields online platforms from lawsuits to arise from user-generated content and also protects them for removing posts. A Supreme Court opinion as to the validity of the Florida and Texas laws would be “viewed as a bellwether for Internet speech and private rights in the face of government power,” writes CNN.

Several justices have, according to CNN, “hinted at their interest in reviewing the matter, describing the underlying issues as having ‘great importance’ in an era where social media platforms can wield enormous influence on political dialogue.”

The Communications Decency Act, containing Section 230, was passed in 1996, before platforms became as involved in content moderation as they are today. Rather than see the states chip away at Section 230 piecemeal, the Supreme Court may elect to take a constitutional stand, which could trigger “the most consequential changes for social media platforms since their creation,” potentially determining “not only what social media users see on major digital platforms, but also the freedoms that virtually all businesses enjoy in relation to the government,” CNN writes.

In 2021, Florida and Texas each passed laws making it illegal for online platforms to block or demote content deemed to violate terms of service, prompting some lawsuits alleging censorship. The U.S. Court of Appeals for the Eleventh Circuit has determined the Florida law is unconstitutional, while for Texas the fifth circuit ruled the law holds.

Reconciling disagreement among the circuits is a significant factor in the Supreme Court evaluation of whether and when to hear a case. “I think at minimum this means the Texas and Florida cases won’t be heard this spring,” Stanford Law School digital platform regulation expert Daphne Keller tweeted of the court’s request for a the DOJ to weigh in, according to CNN.

The European Union’s Digital Services Act came into force in November, with provisions to hold big tech accountable for user posts, with strict “procedures for taking down illicit content” and also requirements “to be more transparent about how they recommend content to people,” writes The New York Times, adding that “in the United States, where freedom of speech is enshrined in the First Amendment, there has been less legislative action” at the federal level.

If the Supreme Court does hear the cases regarding Texas and Florida it won’t be the first time Section 230 comes under review by the justices. In February, SCOTUS “will hold two days of hearings on a pair of cases” — Gonzalez v. Google and Twitter v. Taamneh —  that challenge the provision with regard to “the use of social media platforms by ISIS terrorists,” according to Barron’s.

Supreme Court Puts Off Considering State Laws Curbing Internet Platforms, The New York Times, 1/23/23

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