Florida And Texas Content-Moderation Restrictions Unconstitutional, DOJ Says

Laws in Texas and Florida that limit social-media platforms' ability to suppress posts should be struck down as unconstitutional, the Department of Justice said Monday in a filing with the Supreme Court.

“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,” U.S. Solicitor General Elizabeth Prelogar wrote. “The states have not articulated interests that justify the burdens imposed by the content-moderation restrictions under any potentially applicable form of First Amendment scrutiny.”

The administration is weighing in on a battle over laws passed in both states in 2021, and were largely driven by conservatives' accusations that social-media companies disproportionately suppress right-wing views.

Courts have stayed enforcement of the laws in both states.

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

Separate provisions require social media platforms to disclose their content moderation policies.

The Texas statute (HB 20) prohibits large social-media platforms from removing or suppressing lawful speech based on the viewpoint expressed. 

The industry groups NetChoice and Computer & Communications Industry Association challenged both laws in court.

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 blocked the law on First Amendment grounds, but a three-judge panel of the 5th Circuit Court of Appeals reversed his ruling. The 5th Circuit stayed its decision pending review by the Supreme Court.

NetChoice and Computer & Communications Industry Association asked the Supreme Court to decide the constitutionality of the Texas law, as well as the transparency provisions of the Florida law.

Attorneys general in Florida and Texas also asked the Supreme Court to take up the dispute.

The Supreme Court in January asked the U.S. Solicitor General to weigh in on both cases.

The Solicitor General on Monday urged the Supreme Court to take up the dispute and to strike down the portions of the Florida and Texas laws that restrict platform's ability to wield editorial control over the content they display.

“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 Justice Department argued. “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.”

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