TAMPA, Fla. (WFLA) — The U.S. Supreme Court is reviewing laws from Florida and Texas that would regulate how large social media companies censor political viewpoints, and they’ve invited the White House and Biden administration to weigh in.
NetChoice, LLC v. Moody, is the legal contest of Florida’s so-called “Big Tech Crackdown” law passed in 2021, would bar social-media companies from banning political candidates from their platforms. That law gives the state’s election commission power to fine companies that violate the law $250,000 a day for statewide candidates and $25,000 a day for other candidates.
The justices have also asked the federal government to weigh in on NetChoice, LLC v. Paxton, another controversial social media law enacted in Texas, which bars social media companies with at least 50 million active users from restricting viewpoints.
The U.S. Court of Appeals for the 5th Circuit upheld the Texas law, while the 11th Circuit struck down most of Florida’s law and blocked it from being implemented while the legal challenge plays out in court.
In May 2022, the Supreme Court put the Texas law on hold.
In a list of orders released Monday, the court asked U.S. Solicitor General, Elizabeth Barchas Prelogar to provide the Biden administration’s view on both matters.
“The Solicitor General is invited to file briefs in these cases expressing the views of the United States,” the Supreme Court said.
The plaintiff in both cases, tech trade association NetChoice, argues both bills violate tech companies’ First Amendment protections for private speech for both businesses and individuals.
According to reports, the law was passed in response to former President Donald Trump’s “de-platforming” on Twitter and Facebook following the Jan. 6, 2021 Capitol insurrection. Trump was accused of inciting violence and breaking community rules on the platforms. His access to Twitter was restored by Elon Musk after the billionaire purchased the site. On Facebook, Trump’s account remains suspended, but not permanently.
On Wednesday, Trump formally petitioned Facebook’s parent company, Meta to restore access to his account, NBC News reported.
In court briefings for the Texas case, NetChoice wrote that “no judicial opinion in our Nation’s history had held that the First Amendment permits government to compel websites to publish and disseminate speech against their will.”
Contesting the Florida version, NetChoice argued similarly that “Florida’s Senate Bill 7072 imposes unprecedented restrictions on the rights of private Internet companies to exercise editorial judgment over the content on their services.”
In a late May ruling for the Texas case, SCOTUS Justice Samuel Alito wrote that the challenges to the law merited a more in-depth review by the highest court, after an application to vacate a stay was approved.
“Social media platforms have transformed the way people communicate with each other and obtain news” and as a result, “This application concerns issues of great importance that will plainly merit this Court’s review,” Alito wrote in his dissent
The cases could have an impact beyond Texas and Florida. It involved a provision of a federal law governing telecommunications, specifically, Section 230, which amended two laws, Communications Act of 1934 and the Telecommunications Act of 1996.
Section 230 allows internet companies, such as Twitter or Facebook, to be protected from consequence for the speech of their users, with their content moderation policies amounting to editorial judgement or free speech, as far as historical precedent.
Some say social media platforms have evolved from simple message boards to a public town square, and are therefore deserving of First Amendment protections.
In Manhattan Community Access Corp. v. Halleck, a similar case from 2019, Justice Sonia Sotomayor wrote in her dissident that “there are purely private spaces, where the First Amendment is (as relevant here) inapplicable. The First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views.”
While President Joe Biden and his administration have been asked to weigh in, they’re not the only figure to offer, or be asked to offer, their own take on the merits of the case. Trump voiced support for both the Texas and Florida laws in October.
The Trump brief said worry over the de-platforming trend was “heightened” because the social media sites “shroud decisions to exclude certain users and viewpoints in secrecy, giving no meaningful explanation as to why certain users are excluded while others posting equivalent content are tolerated.”
The social media de-platforming fight is just one of multiple cases heading to the Supreme Court that could have large impacts on social media, the internet, and internet companies in the U.S.
In February, SCOTUS will review two other tech cases, Gonzalez v. Google and Twitter v. Taamneh. According to the Oyez Project, a multimedia archive of Supreme Court activity from the Illinois Institute of Technology’s Chicago-Kent College of Law, both cases will have the Court weigh regulations of tech companies and online sites and communities.
Combined with the potential decisions in the NetChoice cases, 2023 could see dramatic changes when it comes to how the internet is regulated.