WASHINGTON—The U.S. Department of Justice has filed an amicus brief with the Supreme Court for the federal government and the Biden administration. U.S. Solicitor General Elizabeth Prelogar, the lawyer tasked with representing the federal government before the high court, said that social media regulations implemented in Florida and Texas openly violate the rights of social media websites, per the First Amendment. Such a position is crucial, given that the White House under Democratic President Joe Biden has often been at odds with internet rights advocates and proponents of Section 230 of the Communications Decency Act of 1996. If the high court rules along the lines of Prelogar’s amicus filing, this could fortify Section 230 and the statute’s safe harbor provision that covers not just mainstream social media networks, but adult industry sites.
“When a social-media platform selects, edits, and arranges third-party speech for presentation to the public, it engages in activity protected by the First Amendment,” Prelogar argued in the brief, largely backing the claims of two technology industry lobbying groups that challenged the laws.
Republican-controlled state legislatures in Florida and Texas adopted laws to regulate the firms behind social media websites by barring them from self-moderating and deplatforming accounts that violate their terms and conditions. A challenge to the Texas social media law, House Bill 20, which was adopted by the state legislature during the 2021 legislative session, was filed by tech industry groups NetChoice and the Computer & Communications Industry Association (CCIA).
In their initial filing in early 2022, NetChoice and CCIA argued that House Bill 20 impeded web platforms’ ability to self-regulate, which they argued is guaranteed under the First Amendment. Similar litigation was filed in Florida by NetChoice. Republican Gov. Ron DeSantis, a candidate for the 2024 Republican nomination for the presidency, made regulating social media platforms a priority after Twitter (now X) and Facebook permanently banned then-President Donald Trump for his role in inciting the insurrection at the U.S. Capitol Building on January 6, 2021. With this show of support for his now-political rival, Gov. DeSantis signed into law Senate Bill 7072. This law gave similar regulatory authority to Florida officials that House Bill 20 gave Texas officials.
Challenges to Florida and Texas social media regulations have been reviewed by appeals circuits after local federal district courts heard arguments from plaintiffs and defendants for and against the constitutional claims central to the debate. A panel at the U.S. Court of Appeals for the Fifth Circuit, which covers Texas, declared that House Bill 20 was constitutional. However, a panel at the Eleventh Circuit covering Florida declared Senate Bill 7072 unconstitutional. This led to the dispute in the case law and the need for clarification by the conservative-leaning Supreme Court.
In January 2023, the high court invited the Solicitor General to file an amicus brief outlining the Biden administration’s position on the two state laws. This amicus brief, filed earlier this week, is the federal government's official position, urging the high court to kill both of these state laws.
“[T]his court should affirm the Eleventh Circuit and reverse the Fifth Circuit,” argues Prelogar. “States have not articulated interests that justify the burdens imposed by the content-moderation restrictions under any potentially applicable form of First Amendment scrutiny.” Industry groups are pleased with the filing. Software & Information Industry Association chief Chris Mohr said, “Florida’s and Texas’ abridgment of these rights warrants immediate Supreme Court review.”
