The US Supreme Court is likely to 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, January 23, the Supreme Court formally requested that the US Attorney General, the attorney representing the federal government on the Supreme Court, intervene in two court cases involving consider the constitutionality of Florida and Texas social media laws.
The two state laws, which are similar, prohibit social media companies from removing user-generated content based on “political views” and allow citizens to sue for perceived violations.
The Republican governments of Florida and Texas they have criticized Silicon Valley for what they consider to be 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 business. It also protects companies against the government. Free speech advocates have largely mocked the Florida and Texas laws as unconstitutional, as they force companies to carry speech against your will.
By asking the Biden administration for its opinion on whether or not it should address this consequential legal issue, the Supreme Court has effectively kicked the ball. Fortunately for social media companies, court orders now prevent the two laws from taking effect. But the delay means that a potentially far-reaching change to the way the First Amendment applies to the modern Internet will remain in limbo for another year.
A circuit divided on a key First Amendment issue
The Supreme Court’s announcement was welcome news for industry trade group NetChoice, which is a plaintiff along with the Computer and Communications Industry Association (CCIA) in both cases.
“We are excited that the Supreme Court is seriously considering taking our cases and asking the attorney general for his opinion on the cases,” NetChoice attorney Chris Marchese wrote in a statement. “We hope the attorney general will recognize the First Amendment rights of websites and ask the Supreme Court to hear the cases and find NetChoice and CCIA.”
Essentially, the plaintiffs are asking the Supreme Court to take sides in so-called “circuit division,” a situation that arises when two separate circuit courts of appeals offer different rulings on a similar matter. the eleventh circuit shot down Florida law in May 2022 and the Fifth Circuit upheld Texas law in september but blocked it from the time it takes effect until the Supreme Court issues its ruling.
Request the opinion of the attorney general
The Supreme Court’s decision to seek the opinion of the Attorney General is curious, but not uncommon. The Court sought the attorney general’s opinions 53 times during the Obama administration and 41 times during the first three years of the Trump presidency. (The data is from a analysis 2019 by SCOTUSblog.)
Anupam Chander, a professor at the Georgetown University Law Center, told Quartz that a careful and thorough 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 only with respect to mandatory carry but also transparency obligations. A slow and deliberative approach seems wise, even if they are likely to eventually award the certificate.” (The laws also have transparency mandates that some hold could be useful for understanding how social media platforms work).
Jameel Jaffer, executive director of Columbia University’s Knight Institute for the First Amendment, said the decision was not surprising. “The resolution of these cases is likely to have broad implications for other efforts to regulate the platforms, so it does not seem surprising to me that the Court wants the [solicitor general] to weigh in,” he told Quartz.
Steve Vladeck, a professor at the University of Texas School of Law, said granting a review of this case was almost certain. But hinted that there could be an ulterior motive for the Court’s decision to delay.
“Sometimes, the Court asks for the opinion of the attorney general because [it’s] genuinely interested in what [the Department of Justice] has to say about himself [certiorari] must be granted. And sometimes, he does it just to hit the pause button on cases he *knows* he’s going to concede,” he tweeted. “This is the last one.”
The earliest that Attorney General Elizabeth Prelogar could file her response is late this spring, when oral arguments won’t begin until at least the fall.
The Supreme Court might prefer to wait for these cases and first consider two other cases dealing with Section 230 of the Communications Decency Act, the controversial liability protection law for websites that host user-generated content.
Those cases—Gonzalez vs. Google Y Twitter against Taamneh—largely assess whether Section 230 protects Google-owned YouTube and Twitter from legal liability under US anti-terrorism laws by reinterpreting Section 230, which has become lightning rod for Big Tech criticism in recent years, it could drastically change the way content is moderated by social media platforms.