Supreme Court punts on Texas and Florida social media cases that could upend platform moderation

US News

The Supreme Court of the United States building are seen in Washington D.C., United States on December 28, 2022.
Celal Gunes | Anadolu Agency | Getty Images

The Supreme Court delayed a decision on whether to take up a pair of cases challenging social media laws in Texas and Florida that could upend the way platforms decide which posts they remove and which ones they promote.

On Monday, the court asked the U.S. solicitor general for input on the cases, which were both filed by tech industry groups NetChoice and the Computer and Communications Industry Assocation (CCIA). The groups argue that the laws violate the First Amendment rights of companies to determine what speech they host.

Republican leaders in Texas and Florida have promoted the legislation as a way to counteract what they call unjust censorship of conservative viewpoints on social media. Major platforms have maintained that they simply enforce their terms of service.

NetChoice and CCIA warned that if allowed to take effect, the social media laws would force platforms to keep messages even if they make false claims on very sensitive subjects. Examples include “Russia’s propaganda claiming that its invasion of Ukraine is justified, ISIS propaganda claiming that extremism is warranted, neo-Nazi or KKK screeds denying or supporting the Holocaust, and encouraging children to engage in risky or unhealthy behavior like eating disorders,” the groups wrote in an emergency application seeking to block Texas’ law from taking effect.

The Supreme Court had ruled in favor of the temporary block on the Texas law, without ruling on the merits of the case. An appeals court also temporarily prevented Florida’s law from taking effect. The laws remain in limbo pending a high court decision on whether to take up the cases.

The court is scheduled to hear two other cases next month that could also alter the business models of major platforms. One in particular, Gonzalez v. Google, looks directly at whether algorithms that promote and organize information on websites can be protected by Section 230 of the Communications Decency Act, which shields online services from being held liable for their users’ posts. If the court decides websites should be more responsible for how third-party messages are spread, social media companies could alter the way they operate to reduce their legal exposure.

NetChoice and CCIA said the court’s request for input is a good sign.

“We are excited that the Supreme Court is seriously considering taking up our cases and is asking the Solicitor General for its take on the cases,” NetChoice Counsel Chris Marchese said in a statement. “We expect the Solicitor General will recognize the First Amendment rights of websites and to call on the Supreme Court to take up the cases and find for NetChoice and CCIA.”

CCIA President Matt Schruers agreed that the request “underscores the importance of these cases.”

“It is crucial that the Supreme Court ultimately resolve this matter,” Schruers said. “It would be a dangerous precedent to let government insert itself into the decisions private companies make on what material to publish or disseminate online. The First Amendment protects both the right to speak and the right not to be compelled to speak, and we should not underestimate the consequences of giving government control over online speech in a democracy.”

Representatives for the Texas and Florida attorneys general’s offices did not immediately respond to requests for comment.

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