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Justices invite Biden’s input for social media censorship laws

Social media moderation policies from conservative states are teeing up to be a major First Amendment battle of the term.

WASHINGTON (CN) — The Supreme Court asked the Biden administration on Monday to weigh in on a legal battle between conservative states and social media companies over content moderation laws.

Texas and Florida are behind the two laws now before the high court. The laws sprang up after former President Donald Trump's ban from Twitter and suspension from Facebook. While the sites frame their actions as editorial discretion, lawmakers in the states have likened it to unconstitutional censorship.

After considering challenges to the the laws at their Friday conference, the justices asked U.S. Solicitor General Elizabeth Prelogar to weigh in — a signal the court could be interested in taking up the cases in the future. Monday's order list did not otherwise take up any new cases.

In Florida, SB 7072 would require social media companies to disclose how and when platforms censor speech. Social media companies would also be forced to host speech they disagree with and face fines of $250,000 a day for removing the accounts of statewide political candidates or $25,000 a day for the accounts of local office candidates. Companies would also be forced to disclose standards for how they censor, deplatform and shadow-ban users. 

“In S.B. 7072, Florida took point in preventing social-media platforms from abusing their power over the public square,” Florida Solicitor General Henry Whitaker wrote in the state’s petition. “The Act, as relevant here, requires disclosure about how and when the platforms censor speech and requires the platforms to host some speech that they would otherwise prefer not to host.” 

With similar goals, lawmakers in Texas want to label social media companies as common carriers — companies providing public telecommunications facilities. This would regulate their ability to remove users from their sites. Texas users that felt their content was being censored could also sue social media companies under the law. 

The state labels social media sites as the “modern public square” and argues its law merely gives all Texans equal access to their free speech rights. 

“As this Court has twice recognized, a rule that requires a host to equally treat all comers regulates that host’s ‘conduct, not speech,’” Texas Solicitor General Judd Stone II wrote in the state’s brief. “That remains true even when the conduct to which such a rule applies affects or relates to others’ underlying speech. The platforms cannot convert their conduct, namely their choices to restrict access to their property, into speech by recharacterizing those restrictions as editorial discretion.”  

NetChoice and the Computer & Communications Industry Association — a trade group for sites including Facebook, Twitter, YouTube and Etsy — sued to block both laws, claiming they could upend First Amendment law and speech on the internet. NetChoice argues that its ability to make editorial choices is essential to the operation of its websites. 

“Without these editorial choices, websites would offer experiences overrun with spam, bullying, and other harmful content,” Scott Keller, an attorney with Lehotsky Keller representing NetChoice, wrote in the group’s petition. “For example, during six months in 2018, Facebook, Google, and Twitter took action on over 5 billion accounts or submissions — ‘including 3 billion cases of spam, 57 million cases of pornography, 17 million cases of content regarding child safety, and 12 million cases of extremism, hate speech, and terrorist speech.’” 

NetChoice’s suit against Texas is at the court for a second time after a stint on the court’s emergency docket where five justices agreed to temporarily block the law. Texas’ law was originally blocked by the Obama-appointed U.S. District Judge Robert Pittman, but the Fifth Circuit granted a stay, allowing the law to be enforced. The internet companies then appealed to the justices to block the stay. 

Following the case’s trip to the Supreme Court, the Fifth Circuit issued an opinion reversing the district court’s injunction. NetChoice then appealed to the Supreme Court to hear the case on its merits. 

The internet group was also able to halt Florida’s law at the district court, arguing the law violated the First Amendment and is unconstitutionally vague. The 11th Circuit issued a divided ruling, affirming the district court’s injunction on hosting rules but reversing the disclosure requirements. 

Florida and the internet group have both filed petitions asking the justices to review the lower court’s rulings on the case. 

Asking the solicitor general to weigh in on the cases suggests the justices could be interested in taking up the issue. The court did not provide a deadline for the government’s input so it is not clear when the justices will make a decision on if they will hear the challenges. 

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