November 28, 2023

WASHINGTON — The Supreme Court on Monday asked the Biden administration’s views on whether the constitution allows Florida and Texas to prevent large social media companies from removing posts based on the opinions they express.

The practical effect of the move is to delay by at least several months a decision on whether to hear two major First Amendment challenges to state laws. If the court finally grants a review, which looks likely, it will hear arguments no earlier than October and may not issue a decision until next year.

The laws in the two states are similar but not identical, largely the product of conservative frustration. Supporters of the law say the steps are needed to combat what they call Silicon Valley censorship. In particular, they objected to the decision of some platforms to ban President Donald J. Trump following the attack on the Capitol on January 6, 2021.

The laws were challenged by two industry groups, NetChoice and the Computer and Communications Industry Association, which said the First Amendment prohibits the government from telling private companies whether and how to spread speech.

Florida law fines major social media platforms for refusing to spread views of politicians that violate its standards.

exist a statement In signing the Florida bill, Republican Gov. Ron DeSantis said the law was designed to promote conservative views. “Big tech reviewers will now be held accountable if they inconsistently enforce the rules and discriminate against Silicon Valley’s dominant ideology,” he said.

The Texas law differs in detail, with Judge Andrew S. Oldham in support its decision“To summarize a bit,” he wrote, Florida law “prohibits all censorship of certain speakers” and Texas law “prohibits certain censorship of all speakers” if based on the views they express.

The Texas law applies to social media platforms with more than 50 million monthly active users, including Facebook, Twitter and YouTube. Challengers to the law told the Supreme Court that it appears to have left untouched smaller platforms that appeal to conservatives, such as Truth Social and Gettr.

The law also doesn’t cover sites that specialize in news, sports, entertainment, and other information that isn’t primarily user-generated. The sites covered are largely prohibited from removing posts based on the views they espouse, with the exception of sexual exploitation of children, 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, the three justices of the U.S. Court of Appeals for the 11th Circuit unanimously basic support A preliminary injunction blocking Florida law.

“The editorial judgment exercised by social media platforms is inherently expressive,” Judge Kevin C. Newsom Written for the group. “When platforms choose to remove users or posts, deprioritize content in audience feeds or search results, or sanction violations of their community standards, they are engaging in First Amendment protected activity.”

However, in September, a three-judge panel of the Fifth Circuit Overturned lower court order Block Texas law.

“We reject platforms’ attempts to extract freewheeling censorship from the Constitution’s free speech guarantees,” Justice Oldham wrote for the majority. “Platforms are not newspapers. Their censorship is not speech.”

The Supreme Court has already run into the Texas law, temporarily blocking it in May while an appeal moves forward. The vote was 5 to 4, unusual coalition of dissent.

The three most conservative members of the Supreme Court — Justices Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch (Neil M. Gorsuch) dissented that they would preserve the law, and that the issues were so new and important that the Supreme Court had to consider them at some point.

“Social media platforms have changed the way people communicate with each other and get news,” Judge Alito wrote in the dissent. “At issue is a groundbreaking Texas law that addresses the power of dominant social media companies to influence public discussion of important issues of the day.”

Judge Alito added that he was skeptical of the argument that social media companies have editorial discretion protected by the First Amendment, in the same way that newspapers and other traditional publishers enjoy.

“It’s not at all obvious,” he wrote, “how our existing precedents predating the Internet age apply to large social media companies.”

Liberal Judge Elena Kagan also said she would let the judge’s injunction stand, though she did not join the dissent and gave no reasoning of her own.

The Supreme Court will hear arguments in another case next month, examining the other side of an issue in some aspects of the Florida and Texas cases: Whether social media platforms can be sued despite laws protecting companies from liability Content Posted on the Site. The case, brought by the family of a woman killed in the terror attack, argues that YouTube’s algorithm recommended videos that incite violence.

Gonzalez v. Google, No. 21-1333, concerns Section 230 of the Communications Decency Act, a 1996 law that helped fuel the rise of social networks like Facebook and Twitter.

Court asks executive branch for opinion in two new cases — Moody’s v. NetChoiceNo. 22-277, and NetChoice v. PaxtonNo. 22-555 – could mean it will rule on cases involving the 1996 law before deciding whether to try new cases.

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