Most expect that the U.S. Supreme Court will eventually take up the question whether — and to what extent — the First Amendment allows states to regulate content curation on social media platforms. The justices, though, are in no particular hurry to settle the issue. Last Monday, having weighed petitions to review Texas and Florida’s statutes restricting content moderation at their Friday conference, the Court asked the U.S. solicitor general to weigh in on whether it should hear the cases, a step that will likely push any resolution to the Court’s next term.
A call for the views of the solicitor general (or “CVSG”) is often a sign that the justices are seriously weighing whether to grant a petition. Here, though, there was little doubt that the cases are worthy of review — three justices have already said so — and the move was widely read as a delaying tactic. As SCOTUSblog has explained, there is no hard deadline for the Justice Department to share its view, though the government’s responses tend to be clustered in May, August, and December to track the rhythm of the Court’s calendar. It will likely be months at minimum, then, before the justices again consider whether to take up either of the suits.
While the call provides little fresh insight into what the justices will ultimately do, the Justice Department’s response will offer an important window into the government’s thinking about the issue. The Biden administration has often struck an adversarial tone when it comes to Silicon Valley, including in a recent op-ed by the president urging Republicans and Democrats to “unite against Big Tech abuses,” but neither side can take the government’s support for granted.
In the online speech cases already before the Court so far, the Justice Department has tacked back and forth between backing and challenging the tech firms, filing in support of Twitter’s bid to avoid Anti-Terrorism Act liability while opposing Google’s effort to claim immunity under Section 230 of the Communications Decency Act for YouTube’s targeted recommendations. And whatever federal platform regulation President Biden might back, his Justice Department may look differently on the prospect of a patchwork of inconsistent state laws.
If you’re a regular reader of this newsletter, you already know what we think the right answer in these cases is: Texas and Florida’s statutes are unconstitutional, and they should be struck down. We’ll be waiting with suspense — likely until at least the fall of 2023 — to see if the Court agrees.
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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology Press Freedom Project Fellow Emily Hockett.