The United States 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, January 23, the Supreme Court formally requested that the United States Solicitor General, the attorney representing the federal government on the Supreme Court, intervene in two court cases that consider constitutionality 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 have criticized Silicon Valley for what they see as 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 businesses from the government. Free speech advocates have widely called the Florida and Texas laws unconstitutional because they force companies to speak up against their will.

By asking the Biden administration for its views on whether or not to take up this consequential legal issue, the Supreme Court effectively kicked the box. Luckily for social media companies, court injunctions now prevent both laws from taking effect. But the delay means a potentially sweeping change in how the First Amendment applies to the modern internet will remain in limbo for another year.

A split circuit on a key First Amendment issue

The Supreme Court’s announcement is welcome news for industry trade group NetChoice, which is a plaintiff alongside the Computer & Communications Industry Association (CCIA) in both cases.

“We are delighted that the Supreme Court is seriously considering taking over our cases and asking the Solicitor General to comment on the cases,” NetChoice attorney Chris Marchese wrote in a statement. “We expect the Solicitor General to recognize the First Amendment rights of websites and ask the Supreme Court to take up the cases and find NetChoice and CCIA.”

The plaintiffs are essentially asking the Supreme Court to take sides on a so-called “circuit split,” a situation that arises when two separate circuit courts of appeals issue different rulings on a similar issue. The Eleventh Circuit struck Florida law in May 2022 and the fifth circuit upheld Texas law in september but blocked him to take effect until the Supreme Court has rendered its opinion.

Solicit Solicitor General’s perspective

The Supreme Court’s decision to seek the opinion of the Solicitor General is curious, but not uncommon. Under the Obama administration, the court sought the opinion of the solicitor general 53 times and 41 times in the first three years of the Trump presidency. (The data comes from a Analysis 2019 by SCOTUSblog.)

Anupam Chander, a professor at Georgetown University Law Center, told Quartz a careful and comprehensive review was needed given the consequential nature of the case.

“These are complicated cases about constitutional issues embedded in 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, deliberative approach seems wise, even if they are likely to eventually grant a certificate. (Laws also have transparency mandates that some argue might be helpful in understanding how social media platforms work.)

Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said the decision was not surprising. “The resolution of these cases is likely to have broad implications for other efforts to regulate platforms, so it does not strike me as remarkable that the Court wants the [solicitor general] to weigh,” he told Quartz.

Steve Vladeck, a professor at the University of Texas School of Law, said the review of the case is almost a sure thing. But he implied that there could be an ulterior motive for the Court’s decision to delay.

“Sometimes the Court asks the opinion of the Solicitor General because [it’s] really interested in this [the Department of Justice] has to say if [certiorari] should be granted. And sometimes he just does it to hit the pause button on cases he *knows* he’s going to grant,” he tweeted. “It’s the latter.”

The earliest Solicitor General Elizabeth Prelogar could file her response is later this spring, when oral arguments won’t begin until at least the fall.

The Supreme Court may prefer to wait for those cases and weigh in on two other cases first that deal with Section 230 of the Communications Decency Act, the controversial liability protection law for websites that host user-generated content. users.

These cases-González c. Google and Twitter in Goodbye– largely assess whether Section 230 shields Google-owned YouTube and Twitter from legal liability under US anti-terrorism laws. Reinterpret section 230, which has become a lightning rod for Big Tech criticism in recent years, could dramatically change the way social media platforms moderate content.



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