The Supreme Court postponed the case of moderation of social networks

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WASHINGTON — The Supreme Court on Monday asked the Biden administration whether the Constitution allows Florida and Texas to prevent major social media companies from deleting posts based on their opinions.

The practical effect of this ruling was to postpone for at least several months the decision to hear two major First Amendment challenges to state laws. If the court ultimately grants a review, it will hear arguments as early as October and won’t rule until next year.

The two state laws, similar but not identical, were largely the product of conservative frustration. Supporters of the laws said the measures were necessary to combat censorship in Silicon Valley. In particular, after the attack on the Capitol on January 6, 2021, President Donald J. The decisions of some platforms to ban Trump have been challenged.

The laws were protested by two trade groups, NetChoice and the Computer and Communications Industry Association, which said the First Amendment prohibits the government from telling private companies how and when to spread the word.

The Florida law fines major social media platforms that refuse to air the views of politicians who don’t meet their standards.

In a statement released at the signing of the Florida bill, Republican Gov. Ron DeSantis said the law was intended to promote conservative views. “If Big Tech’s censors use the rules inappropriately to discriminate in favor of Silicon Valley’s dominant ideology, they will now be held accountable,” he said.

Texas law differs in its details, wrote Judge Andrew S. Oldham in his affirmative decision. “To generalize a bit,” he wrote, the Florida law “prohibits all censorship of certain speakers,” while the Texas law “prohibits some censorship of all speakers,” based on the views they express.

The Texas law applies to social media platforms with more than 50 million monthly active users, including Facebook, Twitter and YouTube. That doesn’t seem to reach smaller platforms that appeal to conservatives like Truth Social and Gettr, lawyers told the Supreme Court.

Also, the law does not cover sites dedicated to news, sports, entertainment and other information that users do not generally create. With the exception of child sexual exploitation, solicitation of criminal activity, and certain threats of violence, closed sites are generally prohibited from removing posts based on their views.

Federal appeals courts have come to conflicting conclusions about the constitutionality of the two laws.

In May, a unanimous three-judge panel of the 11th United States Circuit Court of Appeals largely upheld a preliminary injunction blocking the Florida law.

“Social media platforms exercise editorial discretion,” Judge Kevin C. Newsom wrote to the panel. “When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction violations of their community standards, they engage in conduct protected by the First Amendment. .”

In September, a divided three-judge panel of the Fifth Circuit overturned a lower court ruling that blocked the Texas law.

“We reject the platforms’ attempt to exclude arbitrary censorship from the Constitution’s guarantee of free speech,” Judge Oldham wrote for the majority. “Platforms are not newspapers. Their censorship is not speech.

The Supreme Court agreed with the Texas law and put it on hold in May while an appeal is pending. The vote was 5-4, with an unusual coalition opposing.

The three most conservative members of the court – Justices Samuel A. Alito Jr., Clarence Thomas, and Neil M. Gorsuch – they would leave the law in place, and the issues would be so new and important that the Supreme Court would have to consider them at some point.

“Social media platforms have changed the way people communicate with each other and get news,” Justice Alito wrote in a dissenting opinion. “This is a groundbreaking Texas law that addresses the power of major social media companies to shape public debate on important issues of the day.”

Justice Alito said he was skeptical of the argument that social media companies have the same First Amendment-protected editorial competence as newspapers and other traditional publishers.

“It is not at all clear how our existing precedents, which predate the Internet age, should apply to large social media companies,” he wrote.

Liberal Justice Elena Kagan also said she would allow the judge’s order against the law to stand, although she did not join the dissent and did not cite a personal reason.

The Supreme Court will hear arguments next month in another case in Florida and Texas that examines the other side of the issue: Can social media platforms be sued despite laws protecting companies from liability? users publish on their sites. A lawsuit filed by the family of a woman killed in a terrorist attack claims that YouTube’s algorithm suggests videos that encourage violence.

The case, Gonzalez v. Google, No. 21-1333, involved Section 230 of the Communications Decency Act, an act of 1996 that allowed the growth of social networks such as Facebook and Twitter.

The court’s request for an administration opinion in two new cases — Moody v. NetChoice, no. 22-277 and NetChoice v. Paxton, No. 22-555 — meaning it will rule on the 1996 case before deciding whether to try new cases.

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