Since the attack on the US Capitol on January 6, 2021, many social media sites, including Twitter and Facebook, have suspended Donald Trump’s accounts.
In response, Republican lawmakers in Texas and Florida have passed state laws that prevent platforms like Facebook, Twitter and YouTube from blocking or restricting political speech.
Those laws are now the subject of a possible case in the Supreme Court, and the court on Monday asked the Biden administration for a plea that would delay a decision on whether the Supreme Court would hear the matter.
Tom Leatherbury is the director of the First Amendment Clinic at Southern Methodist University and an amicus advisor supporting trade groups challenging both laws. Leatherbury said the court would likely hear the case at its next hearing in the fall, as he had asked for a review.
“The review of the administration will include meetings with both sides, studying the briefing; both parties may submit written submissions to the Solicitor General to defend their 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 focuses on whether the two laws are constitutional, he said.
“This is a constitutional challenge to Texas law and another Florida law that prohibits the largest social media platforms from moderating user-generated content,” he said. “They can’t deplatform, deboost, or do anything else based on a user’s point of view or their location in Texas. The law was declared unconstitutional by a federal district court. The Fifth Circuit allowed the law to go into effect, but the U.S. Supreme Court urgently restored the suspension of the law. So the law is not currently in effect in Texas.”
Laws in the two states have similar goals but restrict social media differently, Leatherbury said.
“Texas law prohibits some kind of censorship of all users,” he said. “Florida law prohibits any censorship of certain users.”
Part of the problem with the way things are now is that different courts have given different opinions on the laws in both states.
“There is a split between the Fifth District and the 11th District, which heard the Florida case. The Fifth Circuit ruled that the law of Texas is constitutional and can take effect, and the platforms do not have First Amendment rights,” he said. “The 11th District came to the opposite conclusion and declared that the Florida law is unconstitutional. So you have two district courts that have very different views on these laws.”
He explained that despite the conflicting decisions, no law is currently in effect due to the emergency suspension of the Supreme Court.
If the court finds these laws constitutional, there would be wide-ranging implications for some of the largest social networks in Silicon Valley, Leatherbury said. Among other things, this will prevent platforms from complying with their terms of service, he said.
“Basically, if the law comes into force, the court will say that these private companies do not have the right to moderate content on their platforms under the First Amendment,” he said. “They will be at risk of attorney general lawsuits as well as user lawsuits, some of which have already been filed in Texas seeking attorneys’ fees and injunctive relief. So I think that means the possibility of an explosion of hate speech, disinformation and other unwanted language.”