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✓ The Florida and Texas laws were challenged by Big Tech groups NetChoice and the Computer & Communications & Industry Association (CCIA), which represent companies including Amazon, eBay, Facebook, Google, Twitter, and Yahoo.
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✓ The Florida law, which attempts to make it illegal for large social media sites like Facebook and Twitter to ban politicians, was blocked by a federal judge in a preliminary injunction. That injunction was upheld by the US Court of Appeals for the 11th Circuit, which said the law likely violates the First Amendment.
✓ The Texas law, which prohibits social media companies from moderating content based on a user's "viewpoint," was also initially blocked by a federal judge. But that preliminary injunction was stayed by the US Court of Appeals for the 5th Circuit.
Circuit split. . .
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arstechnica.com
Supreme Court seeks Biden admin input on Texas and Florida social media laws
Policy / Civilization & Discontents
SCOTUS wants to hear from US gov't before deciding whether to take up the cases.
". . .In a list of orders released this morning, the Supreme Court did not decide whether to hear the cases. Instead, the court asked the Department of Justice's Solicitor General to provide the agency's view.
"The Solicitor General is invited to file briefs in these cases expressing the views of the United States," the Supreme Court said.
. . .The split between the two circuits increased the likelihood that the Supreme Court will eventually rule on the First Amendment questions raised by the cases.
In May 2022, the Supreme Court voted 5-4 to vacate the 5th Circuit ruling that revived the Texas law. But the 5th Circuit appeals court, which had previously restored the social media law in a one-sentence order that did not explain the judges' reasoning, later sided with Texas again in a lengthier ruling.
"Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say," the 5th Circuit ruling said.
Florida urged the Supreme Court to rule, saying that its law "attempts to prevent social-media companies from abusing their enormous power to censor speech."
Noting the circuit split, Big Tech lobby groups said the Supreme Court should settle the matter.
"This case, involving a key Constitutional issue and split appellate court decisions, calls for Supreme Court oversight," CCIA President Matt Schruers said in December in a statement on the Texas case. "For 200 years courts have upheld the First Amendment to protect citizens and private businesses from government compelling speech—including forcing websites to publish and disseminate speech against their will."
Schruers further argued that the Texas "social media law would pave the way for an Internet overrun with bad actors and tie the hands of businesses trying to protect users."
Jon Brodkin / Jon is Ars Technica's senior IT reporter, covering the FCC and broadband, telecommunications, tech policy, and more.
Supreme Court Punts On Florida And Texas Social Media Moderation Laws, Asks US Government To Weigh In
from the kick-the-can dept
"Lots of people were expecting the Supreme Court to obviously agree to take the appeals of Florida’s and Texas’s social media content moderation laws. As you’ll probably recall, both Texas and Florida passed slightly different laws that effectively said that they could bar social media platforms from moderating certain types of content. Both laws were tossed out as easily and obviously unconstitutional limitations of social media companies’ 1st Amendment editorial and association rights.
Both states appealed to their local appeals courts.
✓ The 11th Circuit (in a decision written by a Trump-appointed judge) upheld the lower court ruling (mostly) and again highlighted how obviously unconstitutional Florida’s law was.
✓ The 5th Circuit, on the other hand, first reinstated Texas’s law with no explanation whatsoever (literally, there was no ruling, beyond saying that the law should be in effect immediately), leading to a rush to the Supreme Court which put the law back on hold. Months later, the 5th Circuit released an absolutely batshit crazy ruling that required effectively rewriting a century’s worth of 1st Amendment jurisprudence.
Both states appealed to the Supreme Court, and basically everyone expected the Court to take the cases (and combine them). After all, it was an issue that multiple Justices had been asking for cases about, in a situation where you had a very clear circuit split between the appeals courts, on a hot and meaningful issue regarding social media content moderation.
✓✓ But, on Monday morning something slightly odd happened. The Supreme Court punted. It asked the US Solicitor General to weigh in on the issue:
Why would it do that? It seems like there’s nothing that the US government could say that should or would impact the Supreme Court’s reasoning in taking (or, I guess, not taking?) these cases.
Constitutional scholar Steve Vladeck notes that this likely is just a stalling tactic by the Supreme Court.
This almost certainly means that the case about the laws won’t be heard this session but will, instead, wait until next session — meaning that we might not get a ruling on them until 2024.
✓ Of course, it’s not clear why they’re stalling. My only guess is that the Justices know that they’re already handling the Gonzalez/Taamneh cases this session, which are tangentially related. And while both cases involve very different issues and could be decided independently of each other, perhaps the Justices worry that the ruling they come to in Gonzalez/Taamneh will somehow impact the NetChoice/CCIA line of cases against state laws?
,✓ That’s just idle speculation, but it’s the only thing that makes any sense to me. I mean, I guess they could think that if they’re going to burn down the open internet, they can do it across two separate years?
As for the US Solicitor General, it’s already unclear what they’re going to say, but I’m a bit nervous about it. I have a half written post that may never be finished about the SG’s amicus briefs in both Taamneh and Gonzalez and they’re… not great. The one in Taamneh is fine, I guess, and makes the obvious argument that the case is dumb and easily dismissible for reasons unrelated to Section 230. The Gonzalez brief, however, is completely disconnected from reality, and raises questions about how much the Solicitor General’s office actually understands about issues related to content moderation. And, because of that, it’s a little scary whenever they’re asked to weigh in on something related to the internet.
I guess we’ll find out…"
Filed Under: 1st amendment, content moderation, editorial discretion, florida, laws, solicitor general, supreme court, texas
Companies: ccia, netchoice
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