The US Supreme Court will likely wait another full year to consider a crucial legal battle over the First Amendment rights of social media giants like Facebook and Twitter.
On Monday, Jan. 23, the Supreme Court formally requested that the US solicitor general, the lawyer who represents the federal government at the Supreme Court, weigh in on two court cases that consider the constitutionality of Florida and Texas’s social media laws.
The two state laws, which are similar, forbid social media companies from removing user-generated content based on “political viewpoints,” and allow citizens to sue for perceived violations.
The Republican-led governments of Florida and Texas have criticized Silicon Valley for what they consider censorship of right-wing political views. These laws, they say, are an effort to protect the rights of their citizens. But the First Amendment protects citizens against the government, not private companies. It also protects companies against the government. Free speech advocates have largely derided the Florida and Texas laws as unconstitutional, as they force companies to carry speech against their will.
By asking the Biden administration for its view on whether or not it should take up this consequential legal matter, the Supreme Court has effectively kicked the can down the road. Fortunately for the social media companies, court injunctions are now preventing the two laws from going into effect. But the delay means that a potentially far-reaching shift in how the First Amendment applies to the modern internet will hang in limbo for another year.
A circuit split on a key First Amendment issue
The Supreme Court’s announcement came as welcome news to the industry trade group NetChoice, which is a plaintiff alongside the Computer & Communications Industry Association (CCIA) in both cases.
“We are excited that the Supreme Court is seriously considering taking up our cases and is asking the solicitor general for its take on the cases,” NetChoice counsel Chris Marchese wrote in a statement. “We expect the solicitor general will recognize the First Amendment rights of websites and to call on the Supreme Court to take up the cases and find for NetChoice and CCIA.”
The plaintiffs are essentially asking the Supreme Court to take a side on a so-called “circuit split,” a situation that arises when two separate circuit courts of appeals offer different rulings on a similar matter. The Eleventh Circuit struck down the Florida law in May 2022 and the Fifth Circuit upheld Texas’s law in September but blocked it from taking effect until the Supreme Court gives its opinion.
Soliciting the views of the solicitor general
The Supreme Court’s decision to ask the solicitor general for its views is a curious one, but its not uncommon. During the Obama administration, the Court asked for the solicitor general’s views 53 times, and 41 times during the first three years of the Trump presidency. (The data is from a 2019 analysis by SCOTUSblog.)
Anupam Chander, a professor at Georgetown University Law Center, told Quartz that a careful and comprehensive review is necessary given the consequential nature of the case.
“These are complicated cases on constitutional issues embedded within a highly politicized regulatory regime,” Chander said. “They raise complex First Amendment issues, not just regarding compelled carry but also transparency obligations. A go slow, deliberative approach seems wise, even if they are likely to ultimately grant cert.” (The laws also have transparency mandates that some argue could be helpful in understanding how social media platforms work.)
Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, said the decision wasn’t surprising. “The resolution of these cases is likely to have broad implications for other efforts to regulate the platforms, so it doesn’t seem remarkable to me that the Court would want the [solicitor general] to weigh in,” he told Quartz.
Steve Vladeck, a professor at the University of Texas School of Law, said that granting review of this case was almost a sure thing. But he hinted that there might be an ulterior motive for the Court’s decision to delay.
“Sometimes the Court calls for the views of the solicitor general because [it’s] genuinely interested in what [the Department of Justice] has to say about whether [certiorari] should be granted. And sometimes, it does so just to hit the pause button on cases it *knows* it is going to grant,” he tweeted. “This is the latter.”
The earliest the solicitor general Elizabeth Prelogar could file her response is later this spring, when means oral arguments won’t begin until at least the fall.
The Supreme Court might prefer to wait on these cases and first weigh in on two other cases that deal with Section 230 of the Communications Decency Act, the controversial liability protection law for websites that host user-generated content.
Those cases—Gonzalez v. Google and Twitter v. Taamneh—largely assess whether Section 230 protects Google-owned YouTube and Twitter from legal liability under US anti-terrorism laws. Reinterpreting Section 230, which has become a lightning rod for Big Tech criticism in recent years, could drastically change the way social media platforms moderate content.