The Biden administration has requested the US Supreme Court to review the laws in Florida and Texas that impose restrictions on how social media companies like Facebook moderate user-generated content on their platforms.
In the briefs submitted on Monday, the US solicitor general has urged the court to consider two lawsuits led by NetChoice, a tech trade group. Both Florida and Texas have enacted laws that prohibit large social platforms from suspending or penalizing users, citing allegations of bias against conservatives. The legality of these laws remains uncertain due to temporary injunctions, and the recent briefs increase pressure on the Supreme Court to resolve the lawsuits.
“The platforms’ content-moderation activities are protected by the First Amendment”
According to the briefs, “The platforms’ content-moderation activities are protected by the First Amendment, and the content-moderation and individualized-explanation requirements excessively burden these protected activities.” However, the briefs state that the court should not address NetChoice’s argument that the general-disclosure provisions of the laws violate the First Amendment or that the laws were motivated by viewpoint discrimination. This implies that it will not support overturning a Florida court decision that upholds the transparent aspects of the rules.
Chris Marchese, director of litigation at NetChoice, stated on Monday, “The Solicitor General’s brief emphasizes that both Texas and Florida’s laws are unconstitutional, and the Court should review our cases. We urge the Court to invalidate the laws of Texas and Florida and reaffirm the Constitution’s prohibition on government control of online speech.”
The administration’s briefs argue that a platform’s decision to moderate content is protected by the First Amendment.
According to the briefs, “Indeed, given the torrent of content created on the platforms, one of their central functions is to make choices about which content will be displayed to which users, in which form and which order. The act of culling and curating the content that users see is inherently expressive, even if the speech that is collected is almost wholly provided by users.”
It is highly likely that the Supreme Court will consider one of these cases.
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