Florida and Texas have led the way in enacting state laws to limit how social media websites can moderate user content, arguing conservative voices are the ones most often eliminated by tech companies’ decisions.
Now those laws may be headed toward the Supreme Court, with justices to decide on their constitutionality. The cases reflect the competing interests of tech companies and some government officials, tensions that have only grown since Donald Trump won the presidency in 2016.
The Florida and Texas laws were challenged in different federal circuit courts, where judges came to opposite conclusions. And that may entice the Supreme Court to clarify the constitutionality of the state tech regulations.
Last month, Florida asked the highest court to weigh in on its 2021 law limiting online platforms’ ability to remove content by candidates, about office-seekers, and by “journalistic entities.” S.B. 7072 requires companies to adopt the same criteria across their platforms when taking down a post or removing a user account. It includes a fine for services that host third-party content, such as Facebook and YouTube, of $250,000, if sites “willfully deplatform” a candidate for statewide political office. It also empowers the state’s attorney general and private citizens to sue the companies for violations of the law.
Tech industry groups NetChoice and the Computer and Communications Industry Association challenged the Florida law on the basis that it violated the First Amendment rights of the platforms and amounted to unconstitutional “forced speech.” The 11th U.S. Circuit Court of Appeals, covering Florida, Alabama, and Georgia, unanimously agreed with the plaintiffs and stopped the law from going into effect earlier this year. That decision upheld the ruling of a lower U.S. district court that found the law “substantially likely” to be a violation of the First Amendment.
On a parallel track, Texas enacted a similar, but not identical, law during a special legislative session in 2021. That was recently upheld by the 5th U.S. Circuit Court of Appeals, covering Texas, Louisiana, and Mississippi.
The Texas law, H.B. 20, does not name political candidates or journalists as a protected class like Florida’s statute. But the Texas law does ban platforms from removing content based on its political viewpoint. That language may mean that the companies won’t be able to take down any third-party content that is legal. Critics of the law claim this will stop the removal of content that is violent, racist, involves animal cruelty or self-harm, or other posts that are “lawful but awful” and that most platforms routinely remove or demote.
The 5th Circuit disagreed. In the court’s opinion upholding the Texas law, Judge Andrew S. Oldham wrote, “We reject the idea that corporations have a freewheeling First Amendment right to censor what people say.”
That contradicts the 2010 ruling of conservative Supreme Court justices in Citizens United v. Federal Election Commission that found robust First Amendment rights for corporations.
Both the Florida and Texas laws were the products of Republican legislatures and conservative outrage over perceived political bias from Big Tech. But the underlying questions about private property and protections for corporate speech would seem to cut against traditional conservative legal principles.
One tech-related issue the Supreme Court may consider is the federal liability shield given to online platforms early in the internet era. Justices on Oct. 3 agreed to take up two cases that could challenge Big Tech companies’ legal protections, which are shielded by Section 230 of the Communications Decency Act. That provision of the 1996 law protects websites on the internet from being held liable for the content posted by users.
Democratic members of Congress have targeted Section 230 for allowing websites to keep up “misinformation” without fear of legal repercussions. Many Republicans favor replacing the law with “common carrier”-style regulations that in the past have applied to entities serving the public, such as buses, passenger ferries, and so on, that couldn’t lawfully reject customers just because they felt like it. Supporters of Section 230 say it has made possible the explosion and decentralization of speech online.
Florida is hoping the Supreme Court will overturn the 11th Circuit’s decision, but Texas officials are pleased with how their case has gone in federal court.
Texas Attorney General Ken Paxton on Sept. 16 took to Twitter to celebrate the 5th Circuit’s ruling: “I just secured a MASSIVE victory for the constitution & Free speech in fed court #BigTech CANNOT censor the political voices of ANY texan!”
But a follow-up request from NetChoice and CCIA to keep the law from going into effect until the Supreme Court can weigh in on its constitutionality went unchallenged by the Texas attorney general’s office.
“Texas’s acquiescence to our stay request underscores that the case is ripe for Supreme Court review,” NetChoice counsel Chris Marchese told the Washington Examiner.
“The 5th Circuit’s opinion conflicts directly with the 11th Circuit’s unanimous opinion and with long-standing, well-established Supreme Court precedent,” Marchese said. “Given that, Supreme Court intervention seems likely, and thus the status quo, with HB 20 enjoined, should be maintained in the meantime.”
