President Joe Biden’s administration urged the U.S. Supreme Court to strike down key parts of Florida and Texas laws that would sharply restrict the editorial discretion of the largest social media platforms.
In a court filing Monday, U.S. Solicitor General Elizabeth Prelogar said the Republican-backed measures violate the First Amendment rights of social media companies by limiting their freedom to decide how material is presented and requiring detailed explanations for content-moderation decisions.
“When a social-media platform selects, edits, and arranges third-party speech for presentation to the public, it engages in activity protected by the First Amendment,” Prelogar argued. The filing largely backed two industry trade groups challenging the laws.
Prelogar, the administration’s top Supreme Court lawyer, urged the high court to review both laws. The Supreme Court asked Prelogar for her views in January.
The trade associations — which represent Meta Platforms Inc., Alphabet Inc.’s Google and X Corp., the company formerly known as Twitter Inc. — say the laws would impose onerous requirements and put platforms at risk of being overrun by spam and bullying.
The measures have divided federal appeals courts. The Atlanta-based 11th U.S. Circuit Court of Appeals blocked most of Florida’s law as probably violating the First Amendment. The New Orleans-based 5th Circuit upheld the Texas law but left the measure on hold to allow time for an appeal to the Supreme Court.
Texas, Florida and the trade groups all are asking the Supreme Court to intervene on at least some of the issues in the two cases. The court could say as soon as September whether it will hear the cases.
Florida Governor Ron DeSantis and Texas Governor Greg Abbott say the laws are needed to keep conservative voices from being silenced. “If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable,” DeSantis said when he signed his state’s bill into law in May 2021.
Viewpoint discrimination
The centerpiece of the Texas law is a sweeping provision barring large platforms from discriminating based on viewpoint. The prohibition includes a handful of exceptions, letting platforms bar content that incites violence or criminal activity or concerns the sexual exploitation of children or harassment of sexual-abuse survivors.
The Texas law also imposes a number of operational and disclosure requirements. The law sets out procedures for user complaints, requires companies to disclose their content- and data-management practices and publish a sweeping biannual “transparency report.”
The law applies to platforms with more than 50 million monthly users, a threshold that exempts conservative social media sites such as Parler and Gab.
The Florida law includes a dozen major provisions, including a requirement that platforms provide a “thorough rationale” for each content-moderation decision. The 11th Circuit called that provision “particularly onerous.”
The law also bars platforms from banning political candidates or “journalistic enterprises.” As with Texas, the Florida law applies only to the biggest social media companies.
Though largely siding with the social media groups, Prelogar said the Supreme Court shouldn’t take up their arguments against what she called the “general-disclosure provisions” in the laws, including the requirements that platforms publish content-management policies and produce transparency reports.
She said that those issues “have not been the focus of this litigation” and that high court review would be premature.
The Texas case is NetChoice v. Paxton, 22-555. The Florida case is Moody v. NetChoice, 22-277, and NetChoice v. Moody, 22-393.
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