The Supreme Court on Friday will consider whether to take up two cases challenging laws in Texas and Florida that prohibit online platforms from removing certain political content, a move that would broaden the justices’ Big Tech docket.
Both states have passed laws prohibiting social networks from removing certain content, measures that were proposed after Twitter and Facebook banned former President Donald Trump after the Jan. 6, 2021, riot at the Capitol.
The Texas law allows users to file suit if a major online platform removes their post because of a certain “viewpoint” it expresses. The Florida law imposes monetary penalties on platforms that permanently ban the accounts of a candidate for office in the state.
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NetChoice and the Computer & Communications Industry Association, organizations funded by Meta, Google, Twitter, and other tech companies, sued to block the respective state laws in 2021. The groups argued the Big Tech companies were entitled to a constitutional right to decide which content to host and what they’re permitted to block.
Chris Marchese, a counsel at NetChoice, told the New York Times the laws acted as a “roundabout way of punishing businesses for exercising First Amendment rights that others disagree with.”
Meanwhile, representatives for Florida Attorney General Ashley Moody, a Republican, have pointed to the state’s filing with the high court, arguing the ruling against the law strips the state’s power “to protect their citizens’ access to information.”
A Florida federal judge agreed with the industry groups in a June 30, 2021, ruling that the law impinged on the platforms’ First Amendment protections, and the U.S. Court of Appeals for the 11th Circuit upheld a bulk of that decision. However, the 5th Circuit upheld the Texas law, saying it rejected “the idea that corporations have a freewheeling First Amendment right to censor what people say.”
Typically, split circuit decisions on similar laws put the Supreme Court in the hot seat to intervene. If the justices decide to hear either or both cases, that would mean the court will decide on four major Big Tech decisions before the end of the present term.
The justices are already poised to hear arguments in Gonzalez v. Google on Feb. 21, which asks the court to consider the scope of Section 230 of the Communications Decency Act and whether its protections remain when an online platform targets certain content based on a user’s past activities on the platform.
The court will also hear arguments on Feb. 22 in Twitter v. Taamneh, a similar case on the merits which focuses on an Islamic State attack in Istanbul. The case aims to answer whether Big Tech companies can be held liable outside Section 230 for allowing terror groups to use their platforms.
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In order for justices to agree to take up a new case, four of the nine justices must vote to accept the case.
The cases up for review are NetChoice v. Paxton and NetChoice v. Moody.
