WASHINGTON (CN) — The Supreme Court teed up a major First Amendment battle on Friday, agreeing to review social media censorship laws from Texas and Florida.
The conservative states enacted legislation targeting social media companies' content moderation following former President Donald Trump’s expulsion from Facebook and Twitter. Texas and Florida say liberal bias within the platforms has allowed conservative voices to be censored, while the tech giants argue they should have editorial discretion to remove harmful content on their sites.
“At bottom, government ‘may not ... tell Twitter or YouTube what videos to post; or tell Facebook or Google what content to favor,’” wrote Scott Keller, an attorney with Lehotsky Keller representing the internet trade groups fighting these laws, in a petition before the court. “A unanimous panel of the Eleventh Circuit embraced this legal conclusion; a divided panel of the Fifth Circuit rejected it. This split cries out for review.”
Texas Governor Greg Abbott sees the Lone Star State’s law as a way to protect conservative speech, proclaiming that the measure means conservative viewpoints cannot legally be banned on social media.
House Bill 20 would restrict social media companies from censoring users' content based on expression.
“HB 20 is designed to ensure the platforms provide undifferentiated service to the public without discriminating based on viewpoint, and forthrightly disclose their content-moderation practices,” Texas Solicitor General Judd Stone II wrote in the state’s brief before the court.
The Texas law would classify social media companies as common carriers — the same label given to public telecommunications facilities — and require them to disclose their moderation standards. Users who have their content taken down from the sites would also be entitled to an explanation from the companies.
Texas’ law has yet to take effect. A federal court in Texas paused enforcement of the law. Although the Fifth Circuit moved to block U.S. District Judge Robert Pittman’s ruling, the Supreme Court put the matter on hold until an appeal was complete.
Not unlike Texas’ law, the Sunshine State’s sister social media regulation has also been put on pause amid legal battles.
Florida’s Senate Bill 7072 aims to control how platforms regulate content by looking at how and when they censor, shadow ban, de-platform or prioritize posts. All of these concepts refer to what content companies want users to see on their sites. Florida’s law would prohibit these practices on certain users and topics, like journalists or political candidates.
Under Florida’s law, social media companies would be forced to explain each and every time they engaged in content moderation. If they choose to remove a user’s post, they would have to deliver a notice to that user with a rationale for the action. Part of this explanation would also tell users how the platform became aware of the post it chose to delete.
Social media companies would also be required to disclose the standards they use to moderate content on their sites.
Failing to comply with SB 7072 would hold monetary consequences for companies, resulting in fines of up to $250,000 per day for removing political candidates’ speech.
Florida’s law was blocked by a preliminary injunction from the Northern District of Florida. The 11th Circuit affirmed in part, finding SB 7072 likely violated the First Amendment. However, the appeals court upheld the law’s disclosure requirements.
Opposing these laws are trade groups that represent social media giants like X, formerly Twitter, Facebook, YouTube and Etsy. NetChoice — the leader of the lawsuits — claims Texas' and Florida’s laws pose serious First Amendment questions.
“HB20 infringes the core First Amendment rights of petitioners’ members by denying them editorial control over their own websites, while forcing them to publish speech they do not wish to disseminate,” attorney Keller wrote in the groups' petition.
The trade groups focus on the novelty of the lower court rulings, arguing that the Fifth Circuit’s ruling would allow governments to compel websites to speak against their will.
“If allowed to stand, the Fifth Circuit’s opinion will upend settled First Amendment jurisprudence and threaten to transform speech on the internet as we know it today,” Keller wrote.
Signaling the court’s interest, the justices asked for the Biden administration’s input on the cases. Solicitor General Elizabeth Prelogar urged the high court to take up the cases since the laws pose important First Amendment questions.
The justices’ grant in Texas and Florida’s cases on Friday was accompanied by a deluge of additional grants, shoring up the high court’s 2023 docket.
The Sixth Amendment’s Confrontation Clause will undergo scrutiny in a case challenging which experts can testify against criminal defendants. The case was brought by Jason Smith, who is facing five drug-related offenses. Evidence in his case was sent to a crime lab operated by the Arizona Department of Public Safety and tested by a forensic scientist. However, a different forensic expert testified in Smith’s case concerning the evidence.
Smith claims his constitutional rights were violated because the testifying expert was providing an opinion on evidence he did not directly review. The justices will decide if the Confrontation Clause allows this type of testimony.
The federal government will get a chance to defend how it operates the No Fly List. An Oregon resident wants a court order stating he is no longer on the list, while the government calls his suit unnecessary because an individual’s removal from the list means they won't be placed back on it. The justices will decide if such challenges to placements on the No Fly List are moot.
A music publishing company will also get its day at the high court in a decades-old copyright infringement case. Answering a question that divided the lower court, the justices will decide the statute of limitations of the Copyright Act.
Among the other grants on the orders list were a Takings Clause challenge related to flooding caused by a Texas highway; an arbitration case concerning the limits of exemptions for workers engaged in foreign or interstate commerce; and a challenge to agency power connected to debt card fee rules.
According to the justices’ custom, the court did not provide any explanation for why it took up any of the dozen cases on its Friday orders list.
Follow @KelseyReichmann
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