WASHINGTON — The Supreme Court asked the Biden administration Monday for its views on whether the Constitution allows Florida and Texas to prevent large social media companies from removing posts based on the views they express.
The practical effect of the move was to put off a decision on whether to hear two major First Amendment challenges to the states’ laws for at least several months. If the court ends up granting review, as seems likely, it will hear arguments no earlier than October and will probably not issue a decision until next year.
The two state laws, which are similar but not identical, were largely the product of conservative frustration. The laws’ supporters said the measures were needed to combat what they called Silicon Valley censorship. In particular, they objected to the decisions of some platforms to bar former president Donald Trump after the attack on the Capitol on Jan. 6, 2021.
The laws were challenged by two trade groups, NetChoice and the Computer & Communications Industry Association, which said the First Amendment prohibits the government from telling private companies whether and how to disseminate speech.
The Florida law imposes fines on large social media platforms that refuse to transmit the views of politicians who run afoul of their standards.
In a statement issued when he signed the Florida bill, Governor Ron DeSantis, a Republican, said the point of the law was to promote conservative viewpoints.
“If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable,” he said.
The Texas law differs in its details, Judge Andrew S. Oldham wrote in a decision upholding it.
“To generalize just a bit,” he wrote, the Florida law “prohibits all censorship of some speakers,” while the Texas law “prohibits some censorship of all speakers” when based on the views they express.
The Texas law applies to social media platforms with more than 50 million active monthly users, including Facebook, Twitter, and YouTube. It does not appear to reach smaller platforms that appeal to conservatives, like Truth Social and Gettr, the law’s challengers told the Supreme Court.
The law also does not cover sites that are devoted to news, sports, entertainment, and other information that their users do not primarily generate. The covered sites are largely prohibited from removing posts based on the viewpoints they espouse, with exceptions for the sexual exploitation of children, incitement of criminal activity, and some threats of violence.
Federal appeals courts reached conflicting conclusions about the constitutionality of the two laws.
In May, a unanimous three-judge panel of the 11th US Circuit Court of Appeals largely upheld a preliminary injunction blocking Florida’s law.
“Social media platforms exercise editorial judgment that is inherently expressive,” Judge Kevin C. Newsom wrote for the panel. “When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction breaches of their community standards, they engage in First Amendment-protected activity.”
In September, however, a divided three-judge panel of the 5th US Circuit Court of Appeals reversed a lower court’s order blocking the Texas law.
“We reject the platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee,” Oldham wrote for the majority. “The platforms are not newspapers. Their censorship is not speech.”
The Supreme Court has already had an encounter with the Texas law, temporarily blocking it in May while an appeal moved forward. The vote was 5-4, with an unusual coalition in dissent.
The court’s three most conservative members — Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch — filed a dissenting opinion saying that they would have left the law in place and that the issues were so novel and significant that the Supreme Court would have to consider them at some point.
“Social media platforms have transformed the way people communicate with each other and obtain news,” Alito wrote in the dissent. “At issue is a groundbreaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”
Alito added that he was skeptical of the argument that social media companies have editorial discretion protected by the First Amendment like that enjoyed by newspapers and other traditional publishers.
“It is not at all obvious,” he wrote, “how our existing precedents, which predate the age of the Internet, should apply to large social media companies.”
Justice Elena Kagan, a liberal, also said she would have let a judge’s injunction against the law stand, although she did not join the dissent and gave no reasons of her own.
The Supreme Court will hear arguments next month in a different case examining what, in some ways, is the flip side of the question in the ones from Florida and Texas: whether social media platforms may be sued despite a law that shields the companies from legal responsibility for what users post on their sites. The case, brought by the family of a woman killed in a terrorist attack, argues that YouTube’s algorithm recommended videos inciting violence.
That case, Gonzalez v. Google, No. 21-1333, concerns Section 230 of the Communications Decency Act, a 1996 law that helped enable the rise of social networks like Facebook and Twitter.
The court’s request for the administration’s views in the two new cases — Moody v. NetChoice, No. 22-277, and NetChoice v. Paxton, No. 22-555 — probably means that it will rule on the case concerning the 1996 law before it decides whether to hear the new cases.