Supreme Court Agrees To Review Texas And Florida Social Media Laws

Both the Texas and Florida laws attempt to prevent social media sites from censoring political speech on their platforms; the companies have opposed the rulings on First Amendment grounds, effectively asserting that the laws would force them to include material that they find inappropriate. Proponents of the laws generally assert that platforms such as Facebook and YouTube restrict speech in a way that specifically affects conservative political viewpoints.

Both laws have been contested in court, with conflicting results. The Court of Appeals for the Fifth Circuit upheld the validity of the Texas law known as House Bill 20 in a case brought by the industry groups NetChoice and the Computer Communications Industry Association (CCIA). “We reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” the circuit court wrote, reversing a lower-court decision that struck down the law.

But a ruling by the Eleventh Circuit brought by the same two advocacy groups struck down the Florida social media law, known as SB 7072. “We hold that it is substantially likely that social-media companies—even the biggest ones—are ‘private actors’ whose rights the First Amendment protects, that their so-called ‘content-moderation’ decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms’ ability to engage in content moderation unconstitutionally burden that prerogative,” the Eleventh Circuit ruled.

Both sides have been expecting the Court to take up the matter, and to address the conflict between the two Circuit Court rulings. A brief by U.S. Solicitor General Elizabeth Prelogar filed in August asked the Court to take up the case, while proposing that the Justices affirm the Eleventh Circuit ruling and reverse the Fifth Circuit. “The platforms’ content-moderation activities are protected by the First Amendment,” Prelogar wrote in her brief. Former President Donald Trump has filed a brief with the Court suggesting both laws be upheld.

NetChoice said it was pleased that the high court decided to address the conflicting lower-court rulings. “Online services have a well-established First Amendment right to host, curate and share content as they see fit,” Chris Marchese, NetChoice Litigation Director, said in a statement. “The internet is a vital platform free expression, and it must remain free from government censorship. We are confident the Court will agree.”

CCIA President Matt Schrues likewise welcomed the court decision to take up the issue: “For more than 200 years, courts have upheld the First Amendment to protect citizens and private businesses from government attempts to compel speech,” he said in a statement. “This is a critical principle of democracy, and we are glad the Supreme Court recognized that and agreed to hear the case.”

Alphabet’s Google, Meta, and X are members of both NetChoice and CCIA.

Write to Eric J. Savitz at [email protected]