- The Biden administration is urging the U.S. Supreme Court to review laws from Florida and Texas that restrict the content moderation practices of social media giants.
- Trade associations representing companies like Meta Platforms Inc., Google’s Alphabet Inc., and X Corp., previously known as Twitter Inc., argue the laws pose heavy burdens and risk the platforms being flooded with spam and bullying.
- The measures have created a split in federal appeals courts, with Florida’s Governor Ron DeSantis and Texas’ Governor Greg Abbott staunchly defending the laws, stating they are necessary to prevent censorship of conservative voices.
The Biden administration is calling on the U.S. Supreme Court to examine parts of the Florida and Texas laws that significantly limit the editorial discretion of major social media platforms, arguing that the measures infringe on the First Amendment rights of the companies.
U.S. Solicitor General Elizabeth Prelogar filed the court briefing, saying that the Republican-backed laws hamper the social media platforms’ freedom to curate content and necessitate intricate justifications for their content-moderation choices. The filing came in support of two industry trade groups who are challenging the laws: NetChoice and the Computer & Communications Industry Association (CCIA), which represent some of the world’s largest tech companies, including Google parent company Alphabet, Facebook parent company Meta, and X, formerly known as Twitter.
The Atlanta-based 11th U.S. Circuit Court of Appeals, one of the more conservative courts in the nation, obstructed most of Florida’s law, seeing it as likely infringing on the First Amendment. Conversely, the New Orleans-based 5th Circuit upheld the Texas law, although it paused its implementation to allow an appeal to the Supreme Court. The high court could announce as early as September whether it will consider the cases.
The Texas law focuses on a broad provision that prohibits large platforms from viewpoint discrimination. It includes some exceptions, allowing platforms to block content promoting violence, criminal activity, sexual exploitation of children, or harassment of abuse survivors. Moreover, the law mandates procedures for user complaints, disclosure of content, and data management practices. It applies to platforms with over 50 million monthly users, exempting some conservative sites like Parler and Gab.
Florida’s law includes 12 major provisions and requires platforms to furnish a “thorough rationale” for each content moderation decision, a requirement the 11th Circuit deemed “particularly onerous.” The law also prevents platforms from banning political candidates or “journalistic enterprises” and, like Texas’ law, is targeted at the largest social media companies.
Florida Governor Ron DeSantis and Texas Governor Greg Abbott believe the laws are essential to stop conservative voices from being stifled on major internet platforms. Document leaks last year from Twitter showed significant collaboration between the federal government and the online social media platform that specifically targeted conservative voices. DeSantis stressed accountability for Big Tech when he signed his state’s bill into law in May 2021. Meanwhile, in a Supreme Court petition, Florida’s lawyers argued that the 11th Circuit’s decision severely undermined governments’ ability to protect citizens’ access to information in today’s public square.
But private companies have vehemently disagreed with DeSantis, arguing that the law violates their free speech rights.
“We are glad to see the Solicitor General confirm the importance of the First Amendment issues raised by these state laws. This is exactly the sort of case we would expect the Supreme Court to take up, because it involves a key Constitutional issue and split appellate court decisions,” said CCIA President Matt Schruers. CCIA represents several large social media and tech firms. “For 200 years, courts have uphel the First Amendment to protect citizens and private businesses from government attempts to compel speech. We look forward to being heard on this matter in the Supreme Court.”
While generally supporting the social media groups, Prelogar stated that the Supreme Court should not address the “general-disclosure provisions” in the laws, including content-management policies and transparency reports, claiming they have not been the primary focus of the litigation. The complex issue at hand, dealing with the balance between freedom of expression, content moderation, and public interest, awaits the Supreme Court’s decision on whether it will hear these cases. It may result in significant implications for both the tech industry and state governments seeking to regulate online content.
Whatever happened to the old Republican battle cry that goverment that governs best governs least? Not to mention support for the First Amendment. These governors would be more at home in Russia.