The tech industry is asking the Supreme Court to protect their First Amendment rights to remove extremist and hate content from platforms like Facebook and Twitter — arguing that a Texas law banning “censorship” of viewpoints is unconstitutional.
On Thursday, two of the biggest tech trade groups petitioned the Supreme Court to review a federal appeals court ruling that upheld the Texas law. It’s the latest move in the ongoing battle between conservatives — who argue the big tech platforms unfairly target their content — and the industry, which says it should be allowed to exert editorial control over its platforms and moderate what users are doing and posting.
NetChoice and the Computer and Communications Industry Association — which both represent Facebook, Google and Twitter — are appealing a 5th U.S. Circuit Court of Appeals ruling in September that upheld H.B. 20, a Texas law probiting large platforms from “censoring” viewpoints. The groups say the First Amendment prohibits viewpoint-based laws that restrict websites’ editorial choices, according to a copy of the petition first reported by POLITICO.
With Thursday’s action, the Supreme Court has now received petitions from two conflicting split circuit rulings related to state laws that seek to force platforms to carry certain speech.
Both Florida’s attorney general and the tech groups petitioned SCOTUS to take up an 11th Circuit Court of Appeals ruling that largely struck down a similar Florida law prohibiting tech companies from de-platforming politicians and candidates, saying it violated the First Amendment.
Both the Texas and Florida laws are currently blocked by the circuit courts from going into effect.
The Texas attorney general did not immediately respond to a request for comment.
The tech groups say if both laws were in effect, social media platforms would have to carry content that violates their own rules around hate speech and extremist content.
“We’re confident the U.S. Supreme Court will uphold the First Amendment by concluding that the government may not force private businesses to disseminate vile content or overrule their private editorial decisions,” NetChoice counsel Chris Marchese said in a statement.
The Supreme Court has already ruled on the 5th Circuit’s decision to uphold Texas’ law. In a 5-4 ruling in May, the highest court blocked the Texas law from going into effect in response to an emergency request by NetChoice and CCIA, based off an earlier 5th Circuit decision in the spring. The high court, however, didn’t rule on the underlying merit of the 5th Circuit ruling — and potentially could if it grants this latest petition.
The 5th Circuit’s 2-1 ruling in September favored claims made by conservatives that their voices are being censored by tech platforms, an allegation the platforms dispute.
It’s not just Texas and Florida that are pushing legislation to rein in tech platforms’ content moderation policies. More than 34 states advanced legislation last year, with Republican legislatures largely pushing bills requiring more speech to remain online and Democratic legislatures like California and New York advancing bills directing platforms to remove certain extremist content.
The Supreme Court has already agreed to hear two other tech-related cases this term — Gonzalez v. Google and Twitter v. Taamneh — which could impact the future of how the platforms operate under their liability shield known as Section 230 of the Communications Decency Act. That law protects websites from being sued over most third-party content posted by users, and also allows the websites to edit and moderate such content.