WASHINGTON — The Supreme Court on Monday asked the Biden administration for its opinion on whether the constitution allows Florida and Texas to block major social media companies from removing posts based on the views they express.
The practical effect of this move was to delay a decision on whether to hear two major First Amendment challenges to state statutes by at least a few months. If the court allows the review, which seems likely, it won’t hear arguments until October at the earliest and likely won’t make a decision until next year.
The two state laws, which are similar but not identical, were largely the product of conservative frustration. Proponents of the laws said the measures were necessary to combat so-called Silicon Valley censorship. In particular, they resisted the decisions of some platforms to exclude 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, who said the first amendment would ban the government from telling private companies whether and how to distribute speech.
Florida law fines major social media platforms that refuse to broadcast the views of politicians who violate their standards.
In an explanation Issued when he signed the Florida law into law, Gov. Ron DeSantis, a Republican, said the bill’s purpose was to promote conservative views. “When big tech censors inconsistently enforce rules to discriminate in favor of prevailing Silicon Valley ideology, they are now being held accountable,” he said.
Texas law differs in its details, Judge Andrew S. Oldham wrote a decision that upholds it. “To generalize just a bit,” he wrote, Florida law “prohibits all censorship of some speakers,” while Texas law “prohibits some censorship of all speakers” when based on the views they express .
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Texas law applies to social media platforms with more than 50 million monthly active users, including Facebook, Twitter and YouTube. It doesn’t appear to be reaching smaller platforms that appeal to conservatives, like Truth Social and Gettr, challengers to the law in the Supreme Court said.
The law also does not apply to websites dedicated to news, sports, entertainment and other information that its users do not primarily generate. Covered sites are largely prohibited from removing posts based on the viewpoints they represent, with the exception of child sexual exploitation, incitement to criminal activity, and some threats of violence.
Federal appeals courts have reached conflicting conclusions about the constitutionality of the two laws.
In May, a unanimous three-judge panel of the US Circuit Court of Appeals for the 11th Circuit largely complied with an injunction blocking Florida law.
“Social media platforms exercise editorial judgment that is inherently expressive.” Judge Kevin C. Newsom wrote for the panel. “When platforms remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction violations of their Community Standards, they are engaging in activities protected by the First Amendment.”
In September, however, a split panel of three Fifth Circuit judges overturned the order of a lower court Blocking Texas law.
“We reject the platforms’ attempt to extract an overriding right to censorship from the Constitution’s guarantee of free speech,” Judge Oldham wrote for the majority. “The platforms are not newspapers. Your censorship is out of the question.”
The Supreme Court has already had one encounter with the Texas law, temporarily blocking it in May pending an appeal. The vote was 5 to 4, with an unusual coalition in dissent.
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The court’s three most conservative members — Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch — filed a dissenting opinion, saying they left the law in place and that the issues were so novel and significant that the Supreme Court would have to be given some thought.
“Social media platforms have transformed the way people communicate and receive messages,” Judge Alito wrote in the dissenting opinion. “It’s about a landmark Texas law that addresses the power of dominant social media companies to shape public debate about the big issues of the day.”
Judge Alito added that he was skeptical of the argument that the social media companies had editorial discretion protected by the First Amendment that newspapers and other traditional publishers enjoy.
“It’s not at all obvious,” he wrote, “how our existing precedents, set before the internet age, should be applied to big social media companies.”
Judge Elena Kagan, a liberal, also said she allowed a judge’s injunction against the law to stand, although she did not join the dissent and gave no reasons of her own.
The Supreme Court will hear arguments in another case next month examining what’s sort of the flip side of the question in the Florida and Texas cases: whether social media platforms can be sued despite a law that Protects companies from legal responsibility for what users post on their websites. The case, brought by the family of a woman killed in a terrorist attack, argues that YouTube’s algorithm recommended videos that incited violence.
This case, Gonzalez v. Google, No. 21-1333, concerns Section 230 of the Communications Decency Act, a 1996 law that helped enable the rise of social networking sites like Facebook and Twitter.
The court’s request for the administration’s opinion in the two new cases – Moody versus NetChoiceNo. 22-277, and NetChoice vs. PaxtonNo. 22-555 – probably means it will rule on the 1996 Act case before deciding whether to hear the new cases.
