A pair of dueling federal court rulings have put the future of so-called anti-censorship social media laws in doubt. On Monday, the 11th Circuit Court of Appeals blocked Florida’s law, which prevents social platforms from banning users for spreading misinformation. But earlier this month, the 5th Circuit took the reverse position, ending an injunction against a similar Texas law.
The circuit split makes an eventual Supreme Court case likely. Tech companies, which oppose such laws, would like to see the court rule on the specific issue of whether the Texas law can remain in effect during the appeals process. Issie Lapowsky, chief correspondent for Protocol, told Texas Standard that the appeals court ruling in the Florida case could provide a blueprint for the Supreme Court. Listen to the interview above or read the transcript below.
This transcript has been edited lightly for clarity:
Texas Standard: Tell us about the distinctions between the social media laws in Texas and Florida.
Issie Lapowsky: They’re very similar in that they both take aim at what social media companies can and cannot do with regard to content that people post on their platforms. The Texas law tries to prohibit those platforms from removing content on what they’re calling the basis of viewpoint discrimination. Obviously, that’s a really broad term. It’s subject to interpretation, and that’s bad news for the tech companies because they don’t want people suing them left and right, saying, you removed my content over my point of view.
The Florida law is really addressing tech companies’ ability to deplatform politicians to prioritize and deprioritize speech by or about those politicians in people’s feeds. It’s trying to prohibit that kind of behavior. And of course, that’s also not something that the tech companies want. They want the ability to minimize misinformation. They want the ability to remove politicians, as we saw them do with Donald Trump after the January 6 uprising.
So there’s not a perfect difference in terms of the way that the two appeals courts have reviewed this. Nor is there even parity in terms of where these cases are. It sounds like the 11th Circuit struck it down. Am I correct?
They did. They kept the injunction against the Florida law in place, whereas in Texas, that law is still going through the appeals process. It had been blocked while it was going through the appeals process, and the Fifth Circuit decided to lift the injunction, allowing the law to go in into effect while the court is still hearing the appeals process. So the case hasn’t been completely decided in Texas, but as long as it’s being decided, the law is in effect and now it’s up to the Supreme Court to decide whether it stays that way.
Well, big tech firms want the Supreme Court to review the lifting of the injunction against the Texas law. They want that injunction in place. And you write that it could even appear on what’s called the ‘shadow docket’ very soon. How are the lower court decisions likely to affect the way justices approach the case?
So pretty much as soon as the 5th Circuit lifted the injunction on the Texas law, the plaintiffs in that case, which are big tech industry lobbying groups, appealed to the Supreme Court. They filed an emergency application and said, ‘please put this injunction back in place.’ The court is now considering that application. It’s heard replies from the other side. It’s collected amicus briefs, and it is likely to render a decision on the question of whether the injunction stays in place. The question of whether the law is constitutional, whether it violates the First Amendment – that’s not what the Supreme Court is deciding right now. They’re just deciding on whether the law stays blocked pending appeal.
What do you make of the fact that there is this apparent split in the way the two courts approach these similar questions?
Well, what’s most interesting is that the 5th Circuit in the Texas case didn’t provide any reasoning for their decision. And they just lifted this injunction without any rationale or explanation.
In the 11th Circuit, with the Florida law, we got a very lengthy, nuanced decision, and it laid out all the reasons why that law is likely in violation of the First Amendment. And so, the fact that you have this split is interesting. The fact that you have no real explanation from the court deciding in Texas, I think makes that argument, frankly, look weaker.
And I think a lot of people who are Supreme Court watchers think that the 11th Circuit’s decision in Florida may serve as sort of a roadmap for the Supreme Court’s decision, because they have laid out this reasoned opinion.
Now, I will say that whenever you have a circuit split, that’s just the sort of thing that the Supreme Court likes. So after they decide on this Texas injunction, we might see this issue back at the Supreme Court going through the traditional oral argument process where they really rule on the substance of the laws.
Will that settle the matter? Do you see either the Florida law or the Texas law or the subsequent appeals ultimately leading to a definitive answer as to how much control the social media platforms have over their own respective universes, as it were?
I think it’s increasingly looking that way. if Texas goes the way everyone thinks it’s going to go, which is leaving this law in place, then you have two really different readings of very similar laws in different courts across the country. And the Supreme Court is going to really have to say something about that, because you don’t want to have something rendered unconstitutional in Florida, but constitutional in Texas. And so I think it’s looking increasingly likely. And I’m sure that’s really nerve-wracking for the tech companies who are on the other side of this.
We don’t know very much about where the Supreme Court justices stand on this issue. The only person who has been vocal about it is Justice Clarence Thomas, who has said that he thinks that tech companies should be regulated like common carriers, which basically means that they would have to carry all speech no matter how vulgar or violent or whatever it might be. And I think that’s really scary for a lot of tech folks. We just don’t know if the other justices agree with Justice Thomas on that front.