• by Wendy Davis  @wendyndavis, January 31, 2023

The Department of Justice should urge the Supreme Court to rule on the validity of laws in Florida and Texas that prohibit social media platforms from suppressing some posts by users, the tech-industry backed policy group Chamber of Progress says.

In 2021, both Florida and Texas passed laws that aim to prevent large social media companies from suppressing some types of posts.

The measures in both states were largely driven by conservatives' accusations that social media companies disproportionately suppress right-wing views.

The tech industry organizations NetChoice and Computer & Communications Industry Association challenged both laws in court -- with different results.

In Florida, District Court Judge Robert Hinkle in Tallahassee blocked the bulk of the law, ruling that it likely violated the First amendment. A three-judge panel of the 11th Circuit largely upheld Hinkle's ruling, but said provisions of the law requiring companies to disclose their content moderation practices were likely constitutional.

In Texas, District Court Judge Robert Pitman in Austin also blocked the law on First Amendment grounds, but a three-judge panel of the 5th Circuit Court of Appeals reversed Pitman's ruling.

“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” judges on the 5th Circuit wrote in an opinion upholding the law.

That court later temporarily stayed its decision.

The industry groups and attorneys general recently asked the Supreme Court to take up the matter. Last week, the Supreme Court urged the Biden administration to weigh in.

The Chamber of Progress argues that both laws could “eviscerate content moderation.”

“Content moderation is a critical function of the modern internet, empowering Internet services to create safe and productive spaces for their audiences,” the group's letter says. “By requiring websites to treat all First Amendment protected speech equally, Florida, Texas, and their copycats, threaten to eviscerate content moderation. These laws threaten severe harm to online services and their users.”

The group adds that lawmakers in other states -- including Arizona, Oklahoma, and South Carolina -- have also introduced bills that could prohibit online service providers from enforcing their content policies.

The Florida law (SB 7072) subjects large social-media companies to fines of $250,000 per day for “deplatforming” candidates for statewide office, and $25,000 per day for other offices. (The bill defines deplatforming as banning a user for more than 14 days, or permanently deleting the users' account.)

That law also prohibits social media companies from “censoring,” “deplatforming” or “shadow banning” journalistic enterprises, based on content.

The Texas Law (HB 20) prohibits social-media platforms with at least 50 million users from removing or suppressing lawful speech based on the viewpoint expressed.

An amendment that would have explicitly allowed the companies to remove vaccine misinformation failed, as did an amendment that would have explicitly allowed companies to take down posts denying the Holocaust.