The Volokh Conspiracy
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Supreme Court Will Consider Cases Challenging Florida and Texas Social Media Laws
The laws require major social media platforms to host content they disapprove of for substantive reasons.
Today, the Supreme Court decided to hear Moody v. NetChoice and NetChoice v. Paxton, cases challenging Florida and Texas state laws barring major social media firms from using most types of content moderation, thereby requiring them to host content they disapprove of. Eugene Volokh has additional details on the issues the Court will consider here.
In NetChoice v. Paxton, a 2-1 Fifth Circuit decision upheld the Texas law. Earlier, the 11th Circuit unanimously struck down the main provisions of the Florida law, in a decision written by conservative Trump appointee Judge Kevin Newsom.
In previous posts about these cases, I have explained why the Texas law is a threat to freedom of speech, criticized claims that states can and should treat major social media firms as "common carriers" (including critiquing analogies to phone service providers), and argued that these laws violate the Takings Clause of the Fifth Amendment, as well as the Free Speech Clause of the First Amendment (the takings issue is not before the Court).
Last year, the Supreme Court reinstated the trial court injunction against the Texas law, after it was lifted by the Fifth Circuit. In my view, this action may signal that the Court will rule against Texas (and Florida) on the merits, now that the issue is before them.
For those keeping track, I consistently opposed the Texas and Florida laws both before and after Elon Musk acquired Twitter (now called X). I didn't much like the content moderation policies of the pre-Musk management, and I like Musk's policies even less. But they nonetheless both have a First Amendment right to decide which speech they wish to host, and which they don't. If Musk wants to kick me off Twitter/X because he doesn't like my views, he should be entirely free to do so.
I am also one of the relatively few people who simultaneously support the Fifth Circuit's recent decision to bar the White House and other federal officials from coercing social media firms to take down content they deem "misinformation" and oppose that same courts' decision (with a different panel of judges) upholding the Texas social media law. The First Amendment bars government from both forcing social media firms to take down content the state disapproves of and forcing them to put up content the firms themselves object to. Hopefully, the Supreme Court will see things that way, too.
UPDATE: Although I am a former Fifth Circuit clerk, there are now two cases that the Court agreed to hear today where I hope the Court overrules the Fifth Circuit: NetChoice v. Paxton and Devillier v. Texas. I wrote about the latter case here.
