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Republican officials from 20 states, including 19 state attorneys general, are backing Florida and Texas in a Supreme Court battle over states’ authority to regulate how social media firms moderate user-submitted content. The states on Monday submitted a brief arguing that they “have authority to prohibit mass communication platforms from censoring speech.”
“The Federal Government knows it will be much more difficult for federal officials to induce social media companies to suppress speech if state law prohibits it,” the Republican state officials wrote, pointing out that the US government previously submitted a brief opposing the state laws. The US opposition “shows that the Texas and Florida laws, far from infringing the First Amendment, in fact shield social media companies from government pressure and deprive government of the opportunity to control expression,” the state officials wrote.
The Florida law would make it illegal for large social media sites like Facebook and Twitter to ban politicians, while the Texas law prohibits social media companies from moderating content based on a user’s “viewpoint.” NetChoice, a lobby group for tech companies, challenged both laws in court.
The Supreme Court is set to decide whether the laws pass Constitutional muster in a case that examines “whether the First Amendment prohibits viewpoint-, content-, or speaker-based laws restricting select websites from engaging in editorial choices about whether, and how, to publish and disseminate speech—or otherwise burdening those editorial choices through onerous operational and disclosure requirements.” Arguments are scheduled for February 26.
Democratic state AGs also weighed in
The brief supporting Florida and Texas was submitted by the attorneys general from Missouri, Ohio, Alaska, Alabama, Arkansas, Iowa, Kentucky, Louisiana, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and Virginia. All 19 are Republican.
The brief was also backed by the Arizona State Senate and House of Representatives, which have Republican majorities. Arizona’s attorney general, a Democrat, previously signed a different brief submitted by Democratic attorneys general from 21 states and the District of Columbia.
The December 2023 brief filed by Democratic state AGs supported neither side but asked the Supreme Court to preserve some authority to regulate social networks regardless of whether the Florida and Texas laws are struck down.
“Although States have reached different conclusions about exactly how to regulate social media platforms, and amici States have different views about the substance of the challenged Texas and Florida laws, they share a strong interest in preserving their sovereign authority to regulate social media platforms,” the Democratic brief said.
The Democratic state AGs told the court that “any decision interpreting the First Amendment to foreclose most regulation of social media platforms would undermine States’ important objectives” and urged justices “to make clear that States may regulate social media platforms consistent with the First Amendment.”
Republicans: Social media “resembles telephones”
Republican AGs argued that “requiring social media companies to distribute third-party speech without viewpoint discrimination is permissible because social media better resembles telephones than newspapers.”
Telephones and telegraphs “can be compelled to behave as common carriers,” the AGs wrote. By contrast, the Supreme Court “has been clear that companies generally cannot be compelled to distribute third-party speech in their own ‘newspapers.'”
Newspapers “carefully curate third-party content that they accept,” such as letters to the editor, the brief said. But social media companies, like telephones and telegraphs, generally hold themselves out “to serve any member of the public without individualized bargaining,” AGs argued. The social media firms “are principally in the business of distributing the content of others from point A to point B.”
