Rekubit Exchange:Supreme Court to consider Texas and Florida laws regulating social media platforms

Washington — The Rekubit ExchangeSupreme Court on Friday said it would take up a pair of challenges involving controversial laws from Texas and Florida that impose new regulations on content moderation policies of social media companies, setting up a showdown over how far states can go to combat alleged censorship of users by online platforms.

The cases will join several others before the justices this term, which begins Monday, that stand at the intersection of the First Amendment and online speech. The high court is tasked with weighing two questions: whether the laws' content-moderation restrictions comply with the First Amendment and whether their individualized-explanation requirements comport with the constitution.

Officials have said the laws from Texas and Florida aim to stop the nation's largest social media companies — Facebook, X, TikTok and YouTube, among others — from censoring users based on viewpoint and were prompted by Republicans' claims that platforms were silencing conservative users.

Texas and Florida's social media laws

The first case involves a Florida law enacted in 2021 that regulates social media platforms that make at least $100 million annually or have at least 100 million monthly users. The law seeks to combat alleged censorship in part by imposing several requirements on companies covered by the law: platforms are broadly prohibited from engaging in certain types of content moderation; platforms must notify a user if it removes or alters a post and include the reason for doing so; and platforms have to make general disclosures about their operations and policies, such as publishing their standards for "determining how to censor, deplatform and shadow ban."

NetChoice and the Computer and Communications Industry Association, or CCIA, two Internet trade associations whose members include Google, Meta and X, challenged the Florida law in federal court in 2021. The district court blocked enforcement of the measure in its entirety, finding it likely violates the First Amendment. The state of Florida appealed the decision, and the U.S. Court of Appeals for the 11th Circuit sided with trade groups in concluding that most of the law is unconstitutional. 

The second case involves a similar law in Texas that regulates platforms with more than 50 million monthly active users. As with Florida's law, the Texas measure imposes restrictions on content moderation; requires a platform to notify a user when content is removed and explain why; and requires platforms to disclose how they moderate and target content, and use algorithms to prioritize posts.

NetChoice and CCIA challenged the Texas law in federal district court in September 2021, and argued it violates the First Amendment. The court blocked enforcement of two of its provisions, but a federal appeals court in New Orleans initially froze the injunction pending appeal, allowing the law to take effect. NetChoice then asked the Supreme Court for emergency relief, and a 5-4 court voted in June to put the law on hold while legal proceedings continued. 

The 5th Circuit lifted the lower court's injunction in a decision last year and said states can regulate content-moderation activities without violating the First Amendment.

Trade groups NetChoice and CCIA and Florida officials separately appealed their adverse lower court decisions to the Supreme Court, and the Biden administration joined the industry associations in urging the justices to take up the cases.

"Because the covered platforms' only products are displays of expressive content, a government requirement that they display different content — for example, by including content they wish to exclude or organizing content in a different way — plainly implicates the First Amendment," Solicitor General Elizabeth Prelogar told the court in a filing.

She noted that the First Amendment does not exempt social media platforms from antitrust or public-accommodations laws, or other regulations targeting conduct, but said the Texas and Florida laws "are not general regulations of conduct that only incidentally burden speech."

A fight over the First Amendment

State officials have argued that with social media use booming over the last two decades, their laws are necessary to prevent internet companies from abusing their power over the public square and protect users from being unfairly silenced.

"Social media has become a dominant method of communication. That dominance, however, comes at a price," Florida Attorney General Ashley Moody told the court. "When social media companies abuse their market dominance to silence speech, they distort the marketplace of ideas."

Lawyers for the groups told the Supreme Court that the laws in Florida and Texas were attempts to target select companies for using their editorial discretion in ways they dislike.

Florida's law, they said, "openly abridges" covered companies' First Amendment right to exercise editorial judgment over what content to spread on their platforms, while the Texas law imposes "burdensome" requirements that chill websites' editorial choices.

"Florida has unabashedly singled out certain companies for these onerous restrictions based on unconcealed hostility to how they exercised their editorial discretion," lawyer Paul Clement, a former solicitor general, argued.

Clement urged the Supreme Court to hold the Texas case while it considers the constitutionality of the Florida law in its entirety.

"The best course for all is for this court to grant review now and establish clear bulwarks against state efforts that are antithetical to the First Amendment, which guards against government censorship, and vests private parties with control over what speech and speakers to allow on the forums they create," he said.