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 September 30, 2023

Supreme Court set to rule on laws in Florida and Texas restricting Big Tech

The U.S. Supreme Court will decide whether laws in Florida and Texas that restrict Big Tech's ability to silence speech are constitutional, Breitbart reported. The court announced Friday that it would hear the landmark case. 

Both states passed similar laws meant to address the problem of social media companies disproportionately silencing Republican and conservative voices. The companies have fought back by ironically citing their First Amendment rights.

They contend that the government does not have the right to meddle in the way private companies enforce their terms of service, even if it seems to stifle speech on one side over the other. The companies believe they have the right to target ideas and speech under the guise of "content moderation."

Two lower courts disagreed on whether the law should stand, and now the high court will get the final say, The Hill reported. The challenge was brought by NetChoice and the Computer and Communications Industry Association, which both applauded the Supreme Court's decision to hear their case.

"Online services have a well-established First Amendment right to host, curate, and share content as they see fit. The internet is a vital platform for free expression, and it must remain free from government censorship," Chris Marchese, NetChoice litigation director, wrote in a statement.

"We are confident the Court will agree." Matt Schruers, president of the CCIA, similarly expressed optimism that the case will be decided favorably for the tech companies.

“This order is encouraging. It is high time that the Supreme Court resolves whether governments can force websites to publish dangerous content," Schruers said in a statement.

"Telling private websites they must give equal treatment to extremist hate isn’t just unwise, it is unconstitutional, and we look forward to demonstrating that to the Court," he added. However, the lower courts' split decisions hint that it might not be the slam dunk the tech companies think it is.

A block to the Florida version of the law was upheld by the 11th U.S. Circuit Court of Appeals. The court agreed that the "basic principles of freedom of speech and the press" still apply despite the outsized role social media platforms play in the lives of Americans, thanks to the technology revolution.

However, the Texas law withstood the challenge in the 5th U.S. Circuit Court of Appeals. That panel decided that the First Amendment doesn't mean companies have the "unenumerated right to muzzle speech."

That case was decided by former President Donald Trump appointee Judge Andrew Stephen Oldham. Florida Attorney General Ashley Moody argued that the Supreme Court should take up its case given that the decision in the 11th Circuit "squarely conflicts" with the one from the 5th Circuit. 

Solicitor General Elizabeth Prelogar also cited the conflicting ruling from the lower courts to urge the Supreme Court to take up the case.  She wrote that "considering the two laws together would give the Court the fullest opportunity to address the relevant issues."

Although these companies are private corporations, they arguably exist in a nebulous space between a public square and a private business. The laws that govern how they can regulate speech are similarly unclear.

The Supreme Court will need to carefully consider the facts of when and where the First Amendment applies in the realm of social media. Even with a conservative majority on the court, it's difficult to predict what the final ruling might be.

Written By:
Christine Favocci

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