Following the assault on the US Capitol on January 6, 2021, numerous social media sites – including Twitter and Facebook – suspended Donald Trump’s accounts.

In response, Republican lawmakers in Texas and Florida passed state laws that would prevent platforms such as Facebook, Twitter and YouTube from blocking or limiting political speech.

Those laws are now the subject of a possible Supreme Court case, and the court on Monday asked the Biden administration to intervene, which will delay a decision on whether or not the High Court will take up the matter. .

Tom Leatherbury is the director of the First Amendment Clinic at Southern Methodist University, and he has served as amicus counsel supporting business groups challenging both laws. Leatherbury said the court is more likely to take up this case next session in the fall now that it has requested a reconsideration.

“The administration’s review will involve meeting with both parties, studying the briefing; both parties can submit written submissions to the Solicitor General in defense of the Solicitor General’s position,” he said. “Ultimately, the Solicitor General will file a brief with the Court setting out the administration’s position on the constitutionality of these laws.”

The case is about whether the two laws are constitutional, he said.

“This is a constitutional challenge to Texas law and another to Florida law that prohibits the largest social media platforms from moderating user-generated content,” he said. “They can’t deplatform or deboost or anything else based on the user’s perspective or location in Texas. The law was declared unconstitutional by the federal district court. The Fifth Circuit let the law go into effect, but the U.S. Supreme Court, on an emergency motion, reinstated the suspension of the law. The law is therefore not currently in force in Texas.

The two states’ laws serve similar purposes, but limit social media companies differently, Leatherbury said.

Texas law prohibits some censorship of all users,” he said. “Florida law prohibits censorship of certain users.”

Part of the problem with the current situation is that different opinions have been issued by different courts regarding the laws of the two states.

“There is a split between the Fifth Circuit and the 11th Circuit hearing the Florida case. The Fifth Circuit ruled that the Texas law was constitutional and could go into effect, that the platforms had no First Amendment rights,” he said. “The 11th Circuit came to the opposite conclusion and declared the Florida law unconstitutional. So you have two circuit courts that take radically different views on these laws.

Despite the conflicting rulings, no law is currently in force due to the Supreme Court’s emergency suspension, he said.

If these laws are ruled constitutional by the court, Leatherbury said, it will have far-reaching implications for some of Silicon Valley’s biggest social media companies. Among other things, it would prevent platforms from enforcing their terms of service, he said.

“Essentially, the court would say if the law went into effect that these private companies don’t have the First Amendment right to moderate content on their platforms,” ​​he said. “They would be exposed to lawsuits from the Attorney General as well as user lawsuits, some of which have already been filed in Texas seeking attorneys’ fees and an injunction. So I think that means the potential for an explosion of hate speech, misinformation, and other unwanted speech.

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