These laws were enacted in 2021 in response to concerns from lawmakers that these companies were censoring users, particularly those with conservative viewpoints. The social media companies argue that these laws infringe upon their First Amendment rights. (Related story: The White House’s most brazen, entitled, social media censorship demands.)
This announcement came as part of a list of orders resulting from the justices' conference on September 26, marking the first time they considered new cases for the 2023-24 term. Out of the 12 cases reviewed last week, 10 will be covered in a separate report.
The laws in question were passed by the Texas and Florida legislatures in 2021. Texas' H.B. 20 law prohibits social media platforms with at least 50 million active users from blocking, removing or "demonetizing" content based on users' views. Florida's S.B. 7072, also known as the Stop Social Media Censorship Act, prevents social media companies from banning political candidates and "journalistic enterprises."
Ironic: Big Tech companies claim Texas and Florida laws violate their First Amendment right
Tech companies took legal action in federal courts in Texas and Florida, contending, among other arguments, that these laws violate their First Amendment right to control the content on their platforms.
Last year, the Supreme Court temporarily blocked the Texas law while legal challenges proceeded in lower courts.
Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, suggested that the Court may not need to intervene at the time. Justice Elena Kagan also expressed her willingness to allow the law to go into effect without further explanation.
In September 2022, the U.S. Court of Appeals for the 5th Circuit ruled in favor of Texas, upholding the law. This prompted tech companies to request the Supreme Court's involvement.
Texas supported this request and urged the justices to consider both the Texas and Florida laws simultaneously. Florida sought Supreme Court intervention after the U.S. Court of Appeals for the 11th Circuit blocked most of the state's law.
In January, the justices sought the Biden administration's opinion on whether to take up these cases. In an August brief, U.S. Solicitor General Elizabeth Prelogar recommended that the Court address two key questions in the cases: whether provisions in the Texas and Florida laws regulating tech companies' ability to modify, remove or arrange content on their platforms violate the First Amendment, and whether provisions requiring tech companies to explain their decisions to remove or edit specific content also infringe upon the First Amendment.
Prelogar advised the justices to strike down both sets of requirements while suggesting that they need not address two other aspects of the dispute: the tech companies' challenge to general disclosure requirements imposed by the Texas and Florida laws on social media platforms, and their argument that these laws were enacted to target large tech companies due to their decisions regarding conservative content on their platforms.
In the order list issued on Friday morning, Sept. 29, the justices followed Prelogar's recommendation to address the first two questions but not the other two issues in the dispute. The Court is likely to hold hearings early next year.
This dispute marks the second case on the Court's docket involving social media, with the justices already slated to decide whether public officials can violate the First Amendment when blocking individuals on their personal social media accounts.
Arguments for those cases, O'Connor-Ratliff v. Garnier and Lindke v. Freed, are scheduled for October 31.
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Watch the announcement of a U.S. Supreme Court decision allowing censorship.
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