October 3, 2023
The Supreme Court will hear a case that will assess the constitutionality of controversial state laws governing social media in Texas and Florida. The states enacted their laws in 2021, ostensibly to assure “free speech” was guaranteed on platforms like Facebook and X (formerly known as Twitter). Users who considered their views “conservative” filed suit alleging censorship. Protections offered by Section 230 of the Communications Decency Act impact how government can regulate expression shared by online services and private media companies. Much like broadcast’s Fairness Doctrine, plaintiffs argue there are obligations that come with government warrantees.
The Florida case is Moody v. NetChoice (No. 22-277) and in Texas it is NetChoice v. Paxton (No. 22-555), which SCOTUS will hear together.
“The laws’ supporters argue that the measures are needed to combat what they called Silicon Valley censorship, saying large platforms had removed posts expressing conservative views,” writes The New York Times, adding that “in particular, they objected to the decisions of some platforms to bar President Donald J. Trump after the January 6, 2021, attack on the Capitol.”
The trade groups NetChoice and the Computer & Communications Industry Association, have been pursuing challenges to the state laws. The Eleventh Circuit Court of Appeals ruled against the Florida state law, while the Fifth Circuit decided in favor of Texas, setting up an inter-circuit conflict for the Supreme Court to resolve.
“The approaches of the two states were similar but not identical, Judge Andrew S. Oldham wrote in a decision upholding the Texas law,” NYT reports, quoting Oldham writing that “the Florida law ‘prohibits all censorship of some speakers,’ while the Texas law ‘prohibits some censorship of all speakers’ when based on the views they express.”
Florida Governor Ron DeSantis said the law was designed to advance conservative viewpoints, according to NYT, which quotes him saying that “if Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.”
Lawyers for Texas wrote in a brief defending the law that it doesn’t impact the platforms’ right to free speech because at issue are what users post, and “no reasonable viewer could possibly attribute what a user says to the platforms themselves.”
Writing on behalf of the Biden administration, Solicitor General Elizabeth Prelogar wrote that “the act of culling and curating the content that users see is inherently expressive, even if the speech that is collected is almost wholly provided by users.”
The court is expected to hear arguments early next year. Later this month, it will begin two cases questioning whether blocking social media accounts is a violation of the First Amendment.
“The justices are also currently considering, but have not yet acted on, a request from the Biden administration to temporarily block an order by a federal judge in Louisiana that limited communications between the White House and several other government agencies with social media platforms about their content-moderation policies,” according to the SCOTUS Blog.