White House Asks SCOTUS to Strike Down Texas and Florida Content Moderation Laws

President Joe Biden delivers a speech to mark the one-year anniversary of his signing into law the Promise to Address Comprehensive Toxics (PACT) Act at the George E. Wahlen Department of Veterans Affairs Medical Center in Salt Lake City, Utah, on Aug. 10, 2023. Madalina Vasiliu/The Epoch Times

The U.S. Solicitor General has asked the Supreme Court to review online content moderation laws brought by Florida and Texas—encouraging SCOTUS to strike down relevant portions of these laws that would restrict moderation on social media platforms.

The two laws passed in Florida and Texas prohibit social media companies from banning users based on political viewpoints. As such, they restrict the ability of platforms like Facebook, X (formerly Twitter), and YouTube to moderate content even if such content violates the terms and conditions of the website. Courts have been divided over the matter.

The 11th Circuit Court of Appeals in Atlanta had blocked most of Florida’s law from coming into effect, arguing they violate the First Amendment.

Meanwhile, the 5th Circuit from New Orleans upheld the Texas law but left it on hold to allow time for a Supreme Court appeal.

In January, the Supreme Court postponed a decision on whether it would hear the cases, asking the U.S. Solicitor General to weigh in on the issue.

In a brief (pdf) filed on Monday, Solicitor General Elizabeth Prelogar stated that conflicting decisions from circuit courts over the Texas and Florida laws warrant a review by the Supreme Court.

The Supreme Court “should affirm the Eleventh Circuit and reverse the Fifth Circuit,” Ms. Prelogar said.

“The two laws differ in some respects, but both restrict platforms’ ability to engage in content moderation by removing, editing, or arranging user-generated content; require platforms to provide individualized explanations for certain forms of content moderation; and require general disclosures about platforms’ content moderation practices,” the brief said.

“When a social-media platform selects, edits, and arranges third-party speech for presentation to the public, it engages in activity protected by the First Amendment.”

“The content-moderation and individualized-explanation requirements” set forward by the Texas and Florida laws “impermissibly burden those protected activities.”

Florida, Texas, and other trade groups involved in the lawsuits had earlier asked the Supreme Court to intervene on at least some of the case issues. The Supreme Court could decide on whether it would hear the lawsuits as soon as next month.

Florida and Texas Laws

The laws central to the cases are Senate Bill (SB) 7072 signed into law in Florida in May 2021 and House Bill (HB) 20 signed into law in September 2021.

Florida’s SB 7072 “prohibits a social media platform from willfully deplatforming a candidate for political office,” according to the bill summary.

Violating the rule would allow the Florida Elections Commission “to fine a social media platform $250,000 per day for deplatforming a candidate for statewide office and $25,000 per day for deplatforming any other candidate.”

Meanwhile, Texas’ HB 20 makes it unlawful for tech companies to remove or restrict content based on “the viewpoint of the user or another person” or “the viewpoint represented in the user’s expression.”

HB 20 applies to platforms that have over 50 million active monthly users in the United States. It also requires platforms to establish procedures that would allow users to appeal any content removal done by the network.

Texas Gov. Greg Abbott speaks at a press conference in Houston, Texas, on Sept. 13, 2022. Brandon Bell/Getty Images

NetChoice, one of the parties to the cases against the Texas and Florida laws, welcomed Ms. Prelogar’s brief asking for Supreme Court involvement.

“The Solicitor General’s brief underscores that both Texas and Florida’s laws are unconstitutional and that the Court should review our cases,” Chris Marchese, NetChoice Director of Litigation, said in an Aug. 14 statement.

“We urge the Court to strike down Texas and Florida’s laws and reaffirm that the Constitution prohibits the government from controlling online speech.”

The Governors of Florida and Texas had earlier supported the respective laws from their states, arguing that such measures are necessary to ensure that conservative voices are not silenced.

“If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable,” Florida’s Republican Governor Ron DeSantis said about Senate Bill 7072 while signing it into law back in May 2021.

When Texas’ Republican Governor Greg Abbott signed HB 20 in September 2021, he pointed out that social media websites are “our modern-day public square” where “information should be able to flow freely.”

“But there is a dangerous movement by social media companies to silence conservative viewpoints and ideas. That is wrong, and we will not allow it in Texas.”

Biden–Big Tech Censorship

Ms. Prelogar’s brief at the Supreme Court comes amid reports of censorship collusion between the federal government and Big Tech.

In recent weeks, Rep. Jim Jordan (R-Ohio) released documents showing that the Biden administration and Facebook worked together to censor content and users on its platform, dubbing it “The Facebook Files.”

The documents, obtained by the House Judiciary Committee, show that the collusion aimed at restricting the online reach of sites like the New York Post and also deplatforming users whom the administration viewed as undesirable with regard to content about COVID-19.

Elon Musk's photo through a Twitter logo on Oct. 28, 2022. Dado Ruvic/Illustration/Reuters

Back in December, billionaire Elon Musk and independent journalist Matt Taibbi revealed that former execs at Twitter suppressed the New York Post’s Hunter Biden laptop story in the weeks leading to the 2020 presidential election.

The platform also removed content related to the 2020 elections, mail-in voting issues, and the COVID-19 pandemic. At the time, the company was under government pressure to purge such content.

Mr. Musk acquired Twitter in October last year and has now rebranded the platform as “X.” In a June 17 interview with podcast host Zuby, the billionaire pointed out that big platforms like Facebook, Google, and YouTube have “put their thumb on the scale of elections worldwide.”

“And they have done for some time. And a lot of times, it’s so subtle you don’t even really notice it. Frankly, Google might be the most pernicious in that it’s very easy for them to slightly de-rank a search, so it’s on page four or five if you’re looking for something. And nobody ever goes there.”