The Supreme Court on Monday asked the Biden Administration to weigh in on whether it should review Republican-backed laws that would undercut social media companies’ efforts to curb content it deems objectionable.
Laws were passed in 2021 in the states of Texas and Florida, asserting that the social media companies’ actions cross the line into impermissible censorship. Those laws are being challenged before the Court by tech industry groups NetChoice and the Computer & Communications Industry Association.
The groups count among their members Twitter, Google and YouTube owner Alphabet, and Meta-owned Facebook.
Both states’ laws have been championed by Republican lawmakers who assert that the social media outlets are unlawfully censoring conservative viewpoints. That opinion gained momentum on the right after several sites suspended then-President Trump’s accounts following the January 6, 2021 insurrection.
This past November Elon Musk, the new owner of social media site Twitter, revoked a permanent ban on Trump’s Twitter account that was levied two days after January 6 “due to risk of further incitement of violence.” There have recently been reports that Trump, who is running for reelection in 2024, wants to drop an exclusivity agreement he has with his own social media platform, Truth Social, and prepare for a return to Twitter.
Meta, meanwhile, has been weighing whether to revive Trump’s Facebook account, which was also suspended in January 2021. Meta on January 2 was expected to make that decision “in the coming weeks.”
Advocates for the judicious use of curbing social media content have argued for the need to stop misinformation and advocacy for extremist causes. The companies themselves have argued that without editorial discretion, their sites would be overrun with spam, bullying, extremism and hate speech.
Florida’s law requires social media platforms with at least 100 million users to “host some speech that they might otherwise prefer not to host” by disclosing censorship rules and applying them “in a consistent manner among its users.” It also prohibits the banning of any political candidates.
The Texas law forbids social media companies with at least 50 million monthly active users from acting to “censor” users based on “viewpoint.”
The New Orleans-based 5th U.S. Circuit Court of Appeals in 2022 upheld the Texas law, concluding that it “chills no speech whatsoever. To the extent it chills anything, it chills censorship.”
The Atlanta-based 11th U.S. Circuit Court of Appeals in 2022 rejected most of Florida’s law but upheld the legality of the provisions requiring websites to make certain disclosures, including content moderation standards and rule changes.
The Supreme Court already has scheduled two important tech cases for next month.
In Gonzalez v Google, to be argued on February 21, the Court agreed to reconsider the broad legal immunity afforded to internet companies under the Communications Decency Act. The case involves a lawsuit in which the family of an American killed in Paris by followers of ISIS claims that the attackers may have been influenced by YouTube recommendations that they say supported terrorism.
The next day the Justices will consider Twitter v Taamneh, which weighs a related question about the responsibility of monitoring for social media and other internet posts that support terrorism.
