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The U.S. Supreme Court on Monday asked President Joe Biden’s administration to weigh in on whether it should review Republican-backed laws in Texas and Florida that would undercut efforts by major social media companies to curb content deemed objectionable on their platforms, actions the states call impermissible censorship.
The justices are considering taking up two cases involving challenges to the state laws – both currently blocked – brought by technology industry groups NetChoice and the Computer & Communications Industry Association that count Twitter, Meta Platforms Inc (NASDAQ:META)’s Facebook and Alphabet (NASDAQ:GOOGL) Inc’s YouTube as members.
Supporters of the laws have argued that social media platforms have silenced conservative voices while advocates for the judicious use of curbing content have argued for the need to stop misinformation and advocacy for extremist causes.
Florida is seeking to revive its law after a lower court ruled largely against it, while the industry groups are appealing a separate lower court decision upholding the Texas law, which the Supreme Court had blocked at an earlier stage of the case.
The cases would test the argument made by the industry groups that the U.S. Constitution’s First Amendment guarantee of free speech protects the right of social media platforms to editorial discretion and prohibits the government from forcing them to publish and disseminate content against their will, or disclose internal content moderation processes.
The companies have said that without editorial discretion their websites would be overrun with spam, bullying, extremism and hate speech.
The Republican states passed their laws in 2021 in response to a view articulated by many U.S. conservatives and right-wing commentators that large technology companies – sometimes called Big Tech – regularly suppress their views.
These people cite as an example Twitter’s move to permanently suspend of Republican then-President Donald Trump from the platform in the aftermath of the Jan. 6, 2021, attack on the U.S. Capitol by a mob of his supporters, with the company citing “the risk of further incitement of violence.”
Florida’s law requires platforms with at least 100 million users to “host some speech that they might otherwise prefer not to host” by disclosing censorship rules and applying them “in a consistent manner among its users.” It also prohibits the banning of any political candidates.
The Texas law forbids social media companies with at least 50 million monthly active users from acting to “censor” users based on “viewpoint.”
The New Orleans-based 5th U.S. Circuit Court of Appeals in 2022 upheld the Texas law, concluding that it “chills no speech whatsoever. To the extent it chills anything, it chills censorship.”
The Atlanta-based 11th U.S. Circuit Court of Appeals in 2022 rejected most of Florida’s law but upheld the legality of the provisions requiring websites to make certain disclosures, including content moderation standards and rule changes.
