Could the Supreme Court limit how social media platforms police speech online?

The highest court in the country asked the Biden administration to weigh in on the issue this week.

By Sarah AschJanuary 24, 2023 12:40 pm, ,

Following the assault on the U.S. Capitol on Jan. 6, 2021, many social media sites – including Twitter and Facebook – suspended Donald Trump’s accounts.

In response, Republican lawmakers in both Texas and Florida passed state laws that would restrict platforms such as Facebook, Twitter and YouTube from blocking or limiting political speech.

These laws are now the subject of a possible Supreme Court case, and the court on Monday asked the Biden administration to weigh in, which will delay a decision on whether or not the high court takes up the issue.

Tom Leatherbury is the director of the First Amendment Clinic at Southern Methodist University, and he was counsel for amicus supporting trade groups challenging both laws. Leatherbury said the court is more likely to take up this case next session in the fall now that it has asked for a review.

The administration’s “review will involve meeting with both sides, studying the briefing; both sides can submit written submissions to the solicitor general to advocate the solicitor general back their position,” he said. “Ultimately, the solicitor general will file a brief with the Court stating the administration’s position on the constitutionality of these laws.”

The case centers on whether the two laws are constitutional, he said.

“It’s a constitutional challenge to the Texas law and another one to the Florida law that prohibits the largest social media platforms from moderating user-generated content,” he said. “They can’t deplatform, deboost or anything else based on the user’s viewpoint or his location in Texas. The law was struck down as unconstitutional by the federal district court. The Fifth Circuit let the law go into effect, but the United States Supreme Court on an emergency motion reinstated the stay on the law. So the law is not currently in effect in Texas.”

The laws in the two states have similar goals but go about restricting social media companies differently, Leatherbury said.

The Texas law bans some censorship of all users,” he said. “The Florida law bans all censorship of some users.”

Part of the problem with how things currently stand is different opinions were handed down from different courts related to the laws in both states.

“There’s a split between the Fifth Circuit and the 11th Circuit that heard the Florida case. The Fifth Circuit held that Texas law was constitutional and could go into effect, that the platforms had no First Amendment rights,” he said. “The 11th Circuit reached the opposite conclusion and said the Florida law was unconstitutional. So you have two circuit courts taking radically different views of these laws.”

Despite the conflicting decisions, neither law is currently in effect because of the Supreme Court’s emergency stay, he clarified.

If these laws are found to be constitutional by the court, Leatherbury said, it will have wide-sweeping implications for some of the biggest social media companies in Silicon Valley. Among other things, it would prevent the platforms from enforcing their terms of service, he said.

“Essentially the court would be saying if the law went into effect that these private companies have no First Amendment right to moderate content on their platforms,” he said. “They’d be at risk for attorney general enforcement actions and also for user lawsuits, some of which have already been filed in Texas seeking attorney’s fees and injunctive relief. So I think what that means is the potential for an explosion of hate speech and misinformation and other undesirable speech.”

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