Supreme Court Punts On Florida And Texas Social Media Moderation Laws, Asks US Government To Weigh In

Lots of people were expecting the Supreme Court to obviously agree to take the appeals of Florida’s and Texas’s social media content moderation laws. As you’ll probably recall, both Texas and Florida passed slightly different laws that effectively said that they could bar social media platforms from moderating certain types of content. Both laws were tossed out as easily and obviously unconstitutional limitations of social media companies’ 1st Amendment editorial and association rights.

Both states appealed to their local appeals courts. The 11th Circuit (in a decision written by a Trump-appointed judge) upheld the lower court ruling (mostly) and again highlighted how obviously unconstitutional Florida’s law was. The 5th Circuit, on the other hand, first reinstated Texas’s law with no explanation whatsoever (literally, there was no ruling, beyond saying that the law should be in effect immediately), leading to a rush to the Supreme Court which put the law back on hold. Months later, the 5th Circuit released an absolutely batshit crazy ruling that required effectively rewriting a century’s worth of 1st Amendment jurisprudence.

Both states appealed to the Supreme Court, and basically everyone expected the Court to take the cases (and combine them). After all, it was an issue that multiple Justices had been asking for cases about, in a situation where you had a very clear circuit split between the appeals courts, on a hot and meaningful issue regarding social media content moderation.

But, on Monday morning something slightly odd happened. The Supreme Court punted. It asked the US Solicitor General to weigh in on the issue:

Why would it do that? It seems like there’s nothing that the US government could say that should or would impact the Supreme Court’s reasoning in taking (or, I guess, not taking?) these cases.

Constitutional scholar Steve Vladeck notes that this likely is just a stalling tactic by the Supreme Court.

This almost certainly means that the case about the laws won’t be heard this session but will, instead, wait until next session — meaning that we might not get a ruling on them until 2024.

Of course, it’s not clear why they’re stalling. My only guess is that the Justices know that they’re already handling the Gonzalez/Taamneh cases this session, which are tangentially related. And while both cases involve very different issues and could be decided independently of each other, perhaps the Justices worry that the ruling they come to in Gonzalez/Taamneh will somehow impact the NetChoice/CCIA line of cases against state laws? That’s just idle speculation, but it’s the only thing that makes any sense to me. I mean, I guess they could think that if they’re going to burn down the open internet, they can do it across two separate years?

As for the US Solicitor General, it’s already unclear what they’re going to say, but I’m a bit nervous about it. I have a half written post that may never be finished about the SG’s amicus briefs in both Taamneh and Gonzalez and they’re… not great. The one in Taamneh is fine, I guess, and makes the obvious argument that the case is dumb and easily dismissible for reasons unrelated to Section 230. The Gonzalez brief, however, is completely disconnected from reality, and raises questions about how much the Solicitor General’s office actually understands about issues related to content moderation. And, because of that, it’s a little scary whenever they’re asked to weigh in on something related to the internet.

I guess we’ll find out…