Supreme Court Punts On Florida And Texas Social Media Moderation Laws, Asks US Government To Weigh In

from the kick-the-can dept

Lots of people were expecting the Supreme Court to obviously agree to take the appeals of Florida’s and Texas’s social media content moderation laws. As you’ll probably recall, both Texas and Florida passed slightly different laws that effectively said that they could bar social media platforms from moderating certain types of content. Both laws were tossed out as easily and obviously unconstitutional limitations of social media companies’ 1st Amendment editorial and association rights.

Both states appealed to their local appeals courts. The 11th Circuit (in a decision written by a Trump-appointed judge) upheld the lower court ruling (mostly) and again highlighted how obviously unconstitutional Florida’s law was. The 5th Circuit, on the other hand, first reinstated Texas’s law with no explanation whatsoever (literally, there was no ruling, beyond saying that the law should be in effect immediately), leading to a rush to the Supreme Court which put the law back on hold. Months later, the 5th Circuit released an absolutely batshit crazy ruling that required effectively rewriting a century’s worth of 1st Amendment jurisprudence.

Both states appealed to the Supreme Court, and basically everyone expected the Court to take the cases (and combine them). After all, it was an issue that multiple Justices had been asking for cases about, in a situation where you had a very clear circuit split between the appeals courts, on a hot and meaningful issue regarding social media content moderation.

But, on Monday morning something slightly odd happened. The Supreme Court punted. It asked the US Solicitor General to weigh in on the issue:

Why would it do that? It seems like there’s nothing that the US government could say that should or would impact the Supreme Court’s reasoning in taking (or, I guess, not taking?) these cases.

Constitutional scholar Steve Vladeck notes that this likely is just a stalling tactic by the Supreme Court.

This almost certainly means that the case about the laws won’t be heard this session but will, instead, wait until next session — meaning that we might not get a ruling on them until 2024.

Of course, it’s not clear why they’re stalling. My only guess is that the Justices know that they’re already handling the Gonzalez/Taamneh cases this session, which are tangentially related. And while both cases involve very different issues and could be decided independently of each other, perhaps the Justices worry that the ruling they come to in Gonzalez/Taamneh will somehow impact the NetChoice/CCIA line of cases against state laws? That’s just idle speculation, but it’s the only thing that makes any sense to me. I mean, I guess they could think that if they’re going to burn down the open internet, they can do it across two separate years?

As for the US Solicitor General, it’s already unclear what they’re going to say, but I’m a bit nervous about it. I have a half written post that may never be finished about the SG’s amicus briefs in both Taamneh and Gonzalez and they’re… not great. The one in Taamneh is fine, I guess, and makes the obvious argument that the case is dumb and easily dismissible for reasons unrelated to Section 230. The Gonzalez brief, however, is completely disconnected from reality, and raises questions about how much the Solicitor General’s office actually understands about issues related to content moderation. And, because of that, it’s a little scary whenever they’re asked to weigh in on something related to the internet.

I guess we’ll find out…

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Companies: ccia, netchoice

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Comments on “Supreme Court Punts On Florida And Texas Social Media Moderation Laws, Asks US Government To Weigh In”

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33 Comments
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Stephen T. Stone (profile) says:

Re:

It is a common feature of Supreme Court practice

It being a “common feature” doesn’t mean the reason is the same every time. It may be speculation to say this is a stalling tactic, but saying this is never a stalling tactic is making a claim that can’t be proven unless you happen to have specific knowledge that you couldn’t possibly have.

This comment has been deemed insightful by the community.
Thad (profile) says:

Re:

I’ve said it before, but the Roberts Court has been extremely deferential to corporations’ First Amendment rights and I don’t expect that to change now, even with the ideological extremists currently on the court.

I can see two votes in favor of state-compelled speech on social networks. I think five is a stretch.

That One Guy (profile) says:

Re: Re:

Perhaps, however after the Roe debacle I’m not willing to exclude the possibility of a ‘spite ruling’ from the equation and the fact that they’re delaying it like this doesn’t exactly fill me with confidence that it will be a slam-dunk ‘no you aren’t allowed to write laws like that’ decision whenever they do get around to it, though I would of course love to be proven wrong on that one.

Wyrm (profile) says:

Both states appealed to their local appeals courts. The 11th Circuit (…) upheld the lower court ruling (…). The 5th Circuit, on the other hand, first reinstated Texas’s law with no explanation whatsoever (…).

(…) After all, it was an issue that multiple Justices had been asking for cases about, in a situation where you had a very clear circuit split between the appeals courts, on a hot and meaningful issue regarding social media content moderation.

It almost feels like the two circuits (or at least one of them) decided to manufacture a split. But they wouldn’t do that, would they? After all, judges are honorable, always neutral and wouldn’t make decisions based on petty political schemes… (/heavy sarcastic tone here)

spamvictim (profile) says:

Re: Whacko is as whacko does

The 11th Circuit (Florida) opinion is fairly reasonable but the 5th Circuit (Texas) is just nuts. It’s been compared to a B- law student paper, and thumbs its nose at the 11th Circuit opinion.
This sort of high profile circuit split is exactly the sort of case SCOTUS always takes. It would not be unusual for them to ask for the government’s opnion after accepting it, but I agree that in this case they’re stalling.

Henry Grosper says:

Why has net choice not push Clarence Thomas to recuse himself in the Gonzalez vs google case

Justice Thomas has admitted his bias towards section 230 so we all know how Justice Thomas will rule on the Gonzalez case. My question is why did netchoice not push for Justice Thomas to recuse himself considering Thomas admits his bias towards section 230. Netchoice did not even try to get Thomas off the Gonzalez vs Google case even after all the bias Thomas has admitted towards section 230, is there a lawyer on Techdirt who could tell me why no recuse towards Thomas in this case?

David says:

Re:

Why should Thomas recuse himself if he does not like section 230? Section 230 is not part of the constitution, and the Supreme Court is the arbiter of what laws are constitutional. That a Supreme Court Justice does not like a law is no reason whatsoever for recusal.

That there are certainly enough cases where it raises eyebrows that Thomas chooses not to recuse himself does not really mean this to be one of them. He may be wrong and pigheaded about section 230 but that’s no reason to ask for him to recuse himself but rather reason to hope he’ll be outvoted. Unfortunately this option has become less likely with the Federalist Society court stuffing. But it’s still the legitimate pathway.

Blake Stacey (profile) says:

The Gonzalez brief, however, is completely disconnected from reality, and raises questions about how much the Solicitor General’s office actually understands about issues related to content moderation. And, because of that, it’s a little scary whenever they’re asked to weigh in on something related to the internet.

There’s a lengthy section in Google’s reply brief titled “The Government’s Position Is Internally Inconsistent and Misunderstands the Internet”. That’s a bad sign. That the government has filed to argue the case in person is a worse sign.

Damn, I’m going to miss the Internet.

Cat_Daddy (profile) says:

Re:

Let’s not give into despair here. Just because the government is being involved in person with the case, doesn’t mean that the case is a done deal. All the attorney generals involved want to gut section 230, but the reasons why is a split down the middle. One side wants more moderation, the other wants less. It’s the exact same ideological split we see in Congress that consistently kills S.230 amendments. As long as the Supreme Court acknowledges this, it will greatly reinforce that the Gonzalez brief is incoherent and greatly weaken the government’s argument.

While the case is still uncertain, that also applies for those against Section 230. Let’s not give up on hope. Not yet at least.

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Anonmylous says:

Election year Shenanigans?

I mean, 2024 is going to be an election year. If they can push it that far and help conservatives (their kind I mean) gain momentum, surely they’d try. And don’t give me some BS about being above politics, they already lied about Roe and other political issues.

I find it abhorrent that any SC Justice would involve themselves in politics in this manner. And while I could be wrong, and hope I am wrong, it seems more likely than not at this point.

Upholding (wrongly) these laws would have a massive impact on the use of social media in the coming election cycle, mainly to the benefit of Republicans. Even simply delaying it again in 2024 without an injunction against enforcement would have a huge impact on how social media operated in these (and other’s soon) States.

Grab your popcorn and buckle your seatbelts.

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