The Biden administration on Monday urged the Supreme Court to take up a pair of challenges to the constitutionality of controversial social-media laws in Florida and Texas. In a brief filed at the justices’ request, U.S. Solicitor General Elizabeth Prelogar told the court that the laws, which were enacted in response to beliefs that social-media platforms like FaceBook and X (formerly known as Twitter) were censoring their users, raise First Amendment questions that are “undeniably important.”
Although the Supreme Court is not bound by the solicitor general’s recommendation, it normally gives such recommendations considerable weight in deciding whether to grant review. Both the tech companies and the states will have the opportunity to respond to the government’s brief; the court is likely to announce as early as the end of September, when the justices return from their summer recess, whether it will hear oral argument in either or both cases.
The Texas and Florida legislatures passed the laws at the center of the disputes in 2021. The Texas law, known as H.B. 20, prohibits social-media platforms with at least 50 million active users from blocking, removing, or “demonetizing” content based on the users’ views. The Florida law, known as S.B. 1072 or the Stop Social Media Censorship Act, bars social-media platforms from banning political candidates and “journalistic enterprises.”
Technology companies went to federal court in Texas and Florida to challenge the laws, arguing (among other things) that the laws violate their First Amendment right to control what speech appears on their platform. In May 2022, a divided Supreme Court put the Texas law on hold while the challenges to the law continued in the lower courts. Justice Samuel Alito, in an opinion joined by Justices Clarence Thomas and Neil Gorsuch, suggested that the court did not need to intervene yet; Justice Elena Kagan also indicated, without any additional explanation, that she would have allowed the law to go into effect.
Four months later, the U.S. Court of Appeals for the 5th Circuit ruled for the state and upheld the law. That prompted the tech companies to return to the Supreme Court, asking the justices to weigh in. Texas Solicitor Judd Stone agreed that review should be granted and urged the justices to consider both the Texas law and the Florida law at the same time.
Florida came to the Supreme Court in September 2022, asking the justices to take up its appeal after the U.S. Court of Appeals for the 11th Circuit blocked the state from enforcing most of the law. In January, the justices asked the Biden administration for its views on whether to take up the disputes.
In a 25-page brief filed on Monday, Prelogar recommended that the court weigh in on two questions. The first is whether provisions in the Texas and Florida laws that regulate tech companies’ ability to remove, edit, or arrange the content that appears on their platforms violate the First Amendment. The second is whether provisions that require tech companies to explain their decisions to remove or edit specific content violate the First Amendment.
The Supreme Court, Prelogar contended, should strike down both sets of requirements. Moderating and curating content is expressive activity protected by the First Amendment, she argued, and the states have not shown why they need to regulate that activity. Similarly, she added, requiring social-media platforms to “provide an individualized explanation each time they exercise their editorial discretion by removing” content would be “impracticable,” because the laws would apply to “millions of posts per day.”
But there is no need, Prelogar continued, for the justices to weigh in on two other aspects of the dispute: the tech companies’ challenge to provisions in the Texas and Florida laws imposing general disclosure requirements on social-media platforms, and their argument that the laws were enacted to target large tech companies because of their decisions regarding conservative content on their sites. Among other things, Prelogar noted, both the 5th and the 11th Circuits rejected these arguments, so there is no division among the lower courts on this question – one of the criteria that the justices consider when deciding whether to grant review.
