Supreme Court postpones social media moderation cases
WASHINGTON — The Supreme Court asked the Biden administration on Monday for its views on whether the Constitution allows Florida and Texas to prevent large social media companies from deleting posts based on opinions they express.
The practical effect of this decision has been to postpone for at least several months the decision whether to hear two major First Amendment challenges to state laws. If the court does eventually grant a review, as seems likely, it will hear arguments in October at the earliest and likely won’t issue a decision until next year.
The two state laws, which are similar but not identical, were largely the product of conservative frustration. Supporters of the laws said the measures were necessary to combat what they called Silicon Valley censorship. In particular, they opposed the decisions of certain platforms to ban President Donald J. Trump after the attack on the Capitol on January 6, 2021.
The laws have been challenged by two trade groups, NetChoice and the Computer & Communications Industry Association, which have said the First Amendment prohibits the government from telling private companies if and how to broadcast speech.
Florida law imposes fines on major social media platforms that refuse to convey the opinions of politicians who do not meet their standards.
In a statement released during the Florida bill signing, Gov. Ron DeSantis, a Republican, said the purpose of the law was to promote conservative viewpoints. “If Big Tech’s censors apply the rules inconsistently, to discriminate in favor of Silicon Valley’s dominant ideology, they will now be held accountable,” he said.
Texas law differs in its details, Judge Andrew S. Oldham wrote in a decision confirming it. “To generalize a bit,” he wrote, Florida law “prohibits all censorship of certain speakers,” while Texas law “prohibits some censorship of all speakers” when based on the opinions they express.
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The Texas law applies to social media platforms with more than 50 million active monthly users, including Facebook, Twitter and YouTube. It doesn’t appear to be reaching smaller platforms that appeal to conservatives, like Truth Social and Gettr, law challengers told the Supreme Court.
The law also does not cover sites devoted to news, sports, entertainment and other information that their users do not primarily generate. Covered sites are largely prohibited from deleting posts based on views they hold, with the exception of child sexual exploitation, incitement to criminal activity, and certain threats of violence .
Federal appeals courts have come to conflicting conclusions on the constitutionality of the two laws.
In May, a unanimous three-judge panel of the United States Court of Appeals for the 11th Circuit largely upheld a preliminary injunction blocking the Florida law.
“Social media platforms exercise editorial judgment that is inherently expressive,” Judge Kevin C. Newsom wrote for the panel. “When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction violations of their Community Standards, they are engaging in activity protected by the First Amendment. .”
In September, however, a split panel of three Fifth Circuit judges overturned a lower court order blocking the Texas law.
“We reject the platforms’ attempt to extract freewheeling censorship from the Constitution’s free speech guarantee,” Justice Oldham wrote for the majority. “Platforms are not newspapers. Their censorship is not a speech.
The Supreme Court has already had a run-in with Texas law, temporarily stalling it in May while an appeal progresses. The vote was 5-4, with an unusual coalition dissenting.
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The three most conservative members of the court – Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch – filed a dissenting opinion saying they would have left the law in place and the issues were so new and important that the Supreme Court would have to consider them at some point.
“Social media platforms have transformed the way people communicate with each other and get news,” Justice Alito wrote in the dissent. “This is a groundbreaking Texas law that addresses the power of mainstream social media companies to shape public debate on important issues of the day.”
Justice Alito added that he was skeptical of the argument that social media companies have editorial discretion protected by the First Amendment, like that enjoyed by newspapers and other traditional publishers.
“It is not at all clear,” he wrote, “how our existing precedents, which predate the internet age, should apply to large social media companies.”
Judge Elena Kagan, a liberal, also said she would have allowed a judge’s injunction against the law to stand, although she did not join in the dissent and gave no personal reasons.
The Supreme Court will hear arguments next month in another case examining what, in some ways, is the flip side of the issue in those in Florida and Texas: whether social media platforms can be sued despite a law that protects companies from legal responsibility for what users post on their sites. The case, brought by the family of a woman killed in a terrorist attack, argues that YouTube’s algorithm recommended videos inciting violence.
This case, Gonzalez v. Google, No. 21-1333, concerns Section 230 of the Communications Decency Act, a 1996 law that allowed the rise of social networks like Facebook and Twitter.
The court’s request for the administration’s opinion in the two new cases — Moody v. NetChoice, no. 22-277, and NetChoice v. Paxton, No. 22-555 — likely means he will rule on the 1996 law case before he decides whether to hear new cases.