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Biden Administration’s Supreme Court Filing Over Social Media Laws Is Mostly Good, But Partly Bad

from the good,-good,-good,-good,-bad,-bad dept

This one will take a bit of background to explain where things stand. As you likely know, two years ago first Florida and then Texas each signed laws that would restrict social media companies and how they moderate content on their platforms. Both laws were quickly challenged by two trade associations for internet companies: NetChoice and CCIA. The lower courts in both states ruled against the laws, saying they were clearly unconstitutional.

On appeal, the 11th Circuit (covering Florida) upheld the lower court ruling, agreeing that it was mostly obviously unconstitutional, with one problematic exception: the court ruled that some of Florida’s “disclosure” rules were constitutional. These rules required social media companies to disclose their “moderation standards.”

On this, the court said that based on the 1985 Zauderer Supreme Court decision, states can compel speech from businesses if it’s for transparency and disclosure. However, as we discussed with Professor Eric Goldman (who wrote a whole paper on the subject), Zauderer set up a pretty clear test for when such disclosure could be mandated, and it was limited to purely factual information about advertising, and as long as the disclosure was “uncontroversial.” As we discussed with Goldman, content moderation rules meet none of those criteria. Furthermore, demanding “disclosure” of content moderation rules is effectively demanding that a media organization reveal its editorial policies.

As I’ve noted elsewhere, if a state government required a local newspaper to publish how it decided what stories would go on the front page, or what stories wouldn’t get published, the 1st Amendment problem with those laws would be somewhat obvious, in part because the 1st Amendment says it’s none of the government’s business, but more importantly because of the obvious potential chilling effects of such a rule. Such required disclosure of editorial decision making would be used to intimidate media orgs over how they choose to make editorial policy.

And, indeed, it’s the same situation with these social media laws. The true intent is to force those companies to moderate the way the state governments would like, and the “disclosure” rules are just one part of that.

So, the 11th Circuit ruling found the specific demands on how to moderate to be clearly unconstitutional, but said that the mandated transparency of “moderation standards” is possibly Constitutional (it left it open until later in the process, at least).

Meanwhile, over in the 5th Circuit, which was reviewing Texas’ law (which, again, the district court rightly tossed out as unconstitutional), we had this bizarre situation were literally days after the oral arguments, the 5th Circuit with no opinion or explanation said that it was reversing the lower court and the law should go into effect immediately. Immediately.

This resulted in an emergency plea to the Supreme Court’s shadow docket, pointing out that this was fucking crazy not just in terms of the problems with Texas’ law, but just procedurally. Perhaps surprisingly, the Supreme Court agreed and put the law back on hold. Then, a few months later, the 5th Circuit finally got around to writing up its batshit crazy ruling, overturning decades of 1st Amendment precedent and reinstating the law once again, though thankfully it agreed to hold off having the law go into effect until the Supreme Court could review it.

That set in motion a bunch of requests to the Supreme Court to hear appeals on the 5th Circuit ruling and the 11th Circuit ruling (in that case, Florida asked the Supreme Court to review the part the court said was unconstitutional, while NetChoice/CCIA asked the court to review the part that was said to be constitutional).

Given the very clear circuit split between the two courts, as well as the widespread interest (including from certain Supreme Court Justices) on this very issue, it was widely expected that of course the Court would grant cert, likely combining the two cases, and hearing the appeal. But… then the Supreme Court surprised just about everyone by taking the Gonazalez and Taamneh cases, which were also about moderation, and which very few people thought the Supreme Court would review. Hell, when those cases were finally heard, even the Supreme Court Justices appeared confused as to why they took them, leading them to effectively punt on the issue when the final opinion came out.

And “punting on the issue” is something that the Roberts Court is particularly good at, so it did that again with the Florida and Texas cases. Even as everyone expected the court to hear the appeal, it delayed everything by asking the Solicitor General to weigh in on whether or not it should hear the cases at all. As we noted at the time, there’s no reason at all for the Supreme Court to want to hear from the SG regarding whether it should hear the case, and the only reason to do this was basically to let the Supreme Court put this case off until the next term (which starts up this fall).

Finally, on Monday, the Solicitor General did what the Court had asked it to do back in January, and gave its thoughts on these cases. The brief is not surprising, and is good in some ways, but problematic in others.

On the “good” side of things, the SG says that, “yes, of course, the Supreme Court should hear the appeals” on the Constitutionality of the content moderation provisions, noting that it’s a clear circuit split:

As all parties agree, this Court should grant certiorari to resolve the lower courts’ disagreement about States’ authority to restrict a business’s ability to select, edit, and arrange the third-party content that appears on its social-media platform. Moody Pet. 8-18; Moody Br. in Resp. 31-34; Paxton Br. in Resp. 13-15. The decisions below create a square and acknowledged circuit split on that important First Amendment question. And even before that conflict emerged, this Court recognized that the question presented would likely warrant review by vacating the Fifth Circuit’s stay of the preliminary injunction in the Texas case. 142 S. Ct. 1715; see id. at 1716 (Alito, J., dissenting from grant of application to vacate stay) (“This application concerns issues of great importance that will plainly merit this Court’s review.”).

In the government’s view, the Court should grant review in both the Florida and Texas cases. Although the cases turn on the same fundamental question about the First Amendment status of the platforms’ content moderation activities, S.B. 7072 and H.B. 20 target different types of content moderation and impose different obligations. Those differences ultimately may not be material to the Court’s First Amendment analysis, but considering the two laws together would give the Court the fullest opportunity to address the relevant issues.

Also good: the Solicitor General says that the Supreme Court should uphold the 11th Circuit’s decision saying the content moderation restrictions are unconstitutional, and overturn the 5th Circuit’s decision saying otherwise:

On the merits of the content-moderation provisions, this Court should affirm the Eleventh Circuit and reverse the Fifth Circuit. When a social-media platform selects, edits, and arranges third-party speech for presentation to the public, it engages in activity protected by the First Amendment. That activity, and the platforms’ business practices more generally, are not immune from regulation. But here, the States have not articulated interests that justify the burdens imposed by the content-moderation restrictions under any potentially applicable form of First Amendment scrutiny.

It even (smartly) cites the recent 303 Creative case in making its argument. While many people were (understandably) annoyed with how that ruling played out, we had noted that the opinion was actually important for cases exactly like the NetChoice cases, and the Solicitor General realizes that as well:

Indeed, given the torrent of content created on the platforms, one of their central functions is to make choices about which content will be displayed to which users, in which form and which order. The act of culling and curating the content that users see is inherently expressive, even if the speech that is collected is almost wholly provided by users. A speaker “‘does not forfeit constitutional protection simply by combining multifarious voices’ in a single communication.” 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2313 (2023) (quoting Hurley, 515 U.S. at 569). And especially because the covered platforms’ only products are displays of expressive content, a government requirement that they display different content—for example, by including content they wish to exclude or organizing content in a different way—plainly implicates the First Amendment.

The brief also argues that the laws’ requirements for “individualized-explanations” for certain content moderation decisions is also unconstitutional:

The Fifth and Eleventh Circuits’ rulings on the individualized-explanation requirements likewise warrant review because the two courts reached conflicting results on an important First Amendment question. The Eleventh Circuit held that S.B. 7072’s requirement to provide a “‘thorough rationale’” for certain content-moderation decisions would “‘chill protected speech’” by discouraging the “exercise of editorial judgment.” Moody Pet. App. 64a-65a (brackets and citations omitted). The Fifth Circuit reached the opposite conclusion, holding that H.B. 20’s even more burdensome requirement to provide an explanation and an appeal does not chill speech. Paxton Pet. App. 96a.

This Court should grant certiorari to resolve that conflict, which is rooted in the courts’ conflicting views about whether the covered platforms’ content-moderation activities are protected by the First Amendment at all. And as with the content-moderation provisions, the Court should review both the Florida and Texas laws so that it may consider any potentially relevant differences between their requirements.

But… when it gets to the Zauderer issue regarding more general “disclosure” provisions, the Biden administration tells the Supreme Court not to hear that challenge. It doesn’t dig in on the merits, really, but effectively says “look, there’s too much other important stuff going on in this case, leave this issue for another time.”

First, the general-disclosure provisions have not been the focus of this litigation. The parties’ briefs below devoted only a few pages to those provisions, and the courts of appeals did the same. See Moody Pet. App. 62a-64a; Paxton Pet. App. 91a-95a, 97a-98a. Perhaps for that reason, neither court addressed the principal argument that NetChoice presses in this Court— that the deferential standard articulated in Zauderer v. Office of Disciplinary Council, 471 U.S. 626 (1985), should apply only in “the context of correcting misleading advertising.” Moody Cross-Pet. 30. This Court is “a court of review, not of first view,” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005), and it should not take up issues that have received such limited attention in the lower courts.

Second, and relatedly, this Court’s review of the general-disclosure provisions would be impaired by the pre-enforcement posture of these cases and the underdeveloped state of the present record. Among other things, it would be difficult to assess the burden imposed by the general-disclosure provisions because there is no record of enforcement and because the meaning of some of those provisions remains uncertain. NetChoice observes, for example, that it does not know “whether [the covered] websites’ current publicly posted editorial policies comply with [H.B. 20’s] requirement to publish an ‘acceptable use policy’ that ‘reasonably inform[s] users.’ ” Paxton Reply Br. 11 (quoting Tex. Bus. & Com. Code Ann. § 120.052(a) and (b)(1)) (third set of brackets in original).

Third, granting certiorari on the general-disclosure provisions would further complicate what would already be a complex process of merits briefing and argument. Review of the content-moderation and individualizedexplanation provisions would itself require consideration of more than a half-dozen distinct provisions contained in two different state laws. If the Court took up the general-disclosure provisions as well, the total number of provisions at issue would be more than a dozen. And because each of the general-disclosure provisions imposes a distinct requirement, the Court’s conclusions about the burdens and interests implicated by one provision would not necessarily carry over to the others; instead, a provision-by-provision analysis would likely be necessary.

And, yes, there is some truth to the fact that this would complicate matters further, but I have a real problem with the 2nd paragraph, highlighting the pre-enforcement issue as a reason not to hear the case. There’s a reason 1st Amendment cases challenging laws often need to be challenged pre-enforcement. Because the very nature of such laws is that they create serious chilling effects on those targeted, in that impacted parties won’t even try to do what the law threatens to avoid becoming a target.

Having to wait until the law is enforced means that many websites will likely first limit their content moderation “standards,” knowing that they’ll have to be released publicly.

Furthermore, I think there’s another reason the Biden administration likely doesn’t want this line of regulatory requirement to be challenged: because the Biden administration has (unfortunately) endorsed or supported similar laws that would require disclosure of policies, often pushed by Democrats in an effort to “shame” social media companies into moderating certain types of content.

I still hope that the Supreme Court takes up all of these issues, but there’s at least a decent chance that it will agree with the SG on just taking up the core content moderation issues instead. That’s better than not taking it at all, but it will still leave the problematic part of the 11th Circuit’s ruling in place.

Filed Under: 1st amendment, biden administration, content moderation, florida, solictor general, supreme court, texas, transparency, zauderer
Companies: ccia, netchoice