WASHINGTON—The U.S. Supreme Court decided to grant review to federal cases challenging two social media moderation laws implemented by Republican lawmakers in Texas and Florida. The conservative-controlled high court agreed to weigh in on the constitutionality of these laws in their next nine-month session.
Both lawsuits, Moody v. NetChoice and NetChoice v. Paxton, questioned the constitutionality of social media content moderation laws implemented in 2021, partly as a result of major platforms, namely Facebook and X (formerly Twitter), removing Donald Trump from their platforms for his role in inciting a riot at the U.S. Capitol Building on January 6 of that year.
“States are trying to control what Americans see, read, hear, and say online,” Chris Marchese, the director of litigation for NetChoice, said in a statement on August 30. Marchese was urging the high court to consider the two NetChoice cases in the upcoming term. “The Supreme Court should strike down Florida’s and Texas’s laws in full and reaffirm that the First Amendment serves as a bulwark of digital liberty—and against government control of online speech.”
NetChoice is a trade advocacy group representing large technology companies like Meta and X.
State legislators additionally believed that larger companies were purposefully censoring content posted by users who have conservative and potentially extremist viewpoints. They asserted that the power the companies have to self-regulate and conduct content moderation operations was a violation of users’ First Amendment rights.
Both laws attempt to supersede the supremacy of the safe harbor granted to internet platforms under Section 230 of the Communications Decency Act.
Section 230 allows platforms, especially adult entertainment platforms like a tube site, to remove content they deem harmful and potentially illegal. For example, a platform can moderate content that is flagged as potentially illegal and is reviewed by a member of a trust and safety team. The Texas law is House Bill 20. This law prohibits social media platforms with over 50 million users that are active from blocking, deplatforming or demonetizing content based on user’s political and social views. Lawmakers in Florida adopted Senate Bill 7072, which prohibits the platforms from banning politicians or what they define as “journalistic enterprises.”
Both cases were sent to appellate courts. The Fifth Circuit Court of Appeals ruled in favor of Texas in keeping the law on the books. The Eleventh Circuit blocked Florida from enforcing most of its social media laws.
Due to the inconsistencies at both circuit courts, U.S. Solicitor General Elizabeth Prelogar filed an amicus brief on behalf of the federal government in August. In January 2023, the high court invited the Solicitor General to file an amicus brief outlining the Biden administration’s position. 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 Solicitor General Prelogar in the August filing. “States have not articulated interests that justify the burdens imposed by the content-moderation restrictions under any potentially applicable form of First Amendment scrutiny.”
Attorneys who focus their practice on the adult entertainment industry are pleased the high court took up the cases.
“I am quite pleased that the Supreme Court has agreed to hear these cases, and the world should be closely monitoring their progress because the impact of these decisions are going to dictate how the internet looks in the future,” said Corey Silverstein, managing attorney of Silverstein Legal, based in the suburban village of Bingham Farms, Mich., outside Detroit.
“I am hopeful that the Supreme Court will reach the same conclusion that I have, which is that these laws violate the First Amendment by compelling private speech,” Silverstein told AVN.
“It is essential that the Supreme Court resolve these important First Amendment issues involving social media platforms, which have resulted in conflicting decisions from the Circuit Courts of Appeal,” said Larry Walters, managing partner of Walters Law Group in Longwood, Fla. “The decision will have far-reaching impacts on social media communications for decades to come.
Silverstein and Walters are both of-counsel for each other’s firms.
