The Biden administration urges the Supreme Court to take up content moderation cases

The Biden administration has requested the US Supreme Court review Florida and Texas laws restricting how social media companies like Facebook moderate the content users post on their platforms.

In briefs filed on Monday, the US solicitor general urged the court to take up a pair of lawsuits led by the tech trade group NetChoice. Both Florida and Texas passed laws making it illegal for large social platforms to suspend or punish users, citing long-standing allegations that major platforms are biased against conservatives. A series of temporary injunctions have left the future of these laws in limbo, and Monday’s briefs adds new pressure on the Supreme Court to resolve the suits. 

“The platforms’ content-moderation activities are protected by the First Amendment, and the content-moderation and individualized-explanation requirements impermissibly burden those protected activities,” the briefs read. “The Court should not, however, take up NetChoice’s separate contentions that the laws’ general-disclosure provisions violate the First Amendment and that the laws were motivated by viewpoint discrimination.” That means it will not support overturning a Florida court decision that allows transparency-focused portions of the rules to stand.

“The Solicitor General’s brief underscores that both Texas and Florida’s laws are unconstitutional and that the Court should review our cases,” Chris Marchese, director of litigation at NetChoice, said in a statement Monday. “We urge the Court to strike down Texas and Florida’s laws and reaffirm that the Constitution prohibits the government from controlling online speech.”

The administration’s briefs argue that a platform’s decision to moderate content is protected under the First Amendment. 

“Indeed, given the torrent of content created on the platforms, one of their central functions is to make choices about which content will be displayed to which users, in which form and which order,” the briefs read. “The act of culling and curating the content that users see is inherently expressive, even if the speech that is collected is almost wholly provided by users.”

It’s likely that the Supreme Court will take up at least one of these cases.