Diverse Groups File Amicus Briefs Against Florida and Texas Social Media Laws

The Supreme Court will decide whether the social media laws violate the First Amendment.

Diverse Groups File Amicus Briefs Against Florida and Texas Social Media Laws
Photo of Solicitor General Elizabeth Prelogar in June 2023 by Ryland West of ALM

WASHINGTON, December 8, 2023 –  Industry, public interest, and conservative groups filed briefs with the Supreme Court this week arguing against Texas and Florida social media laws.

Drafted to combat what state legislators saw as the unfair treatment of right-wing content online, the 2021 laws would allow residents of those states to sue social media companies for suspending their accounts. Both have been blocked from going into effect after legal challenges from tech industry trade groups. The cases were initially separate, but the Supreme Court agreed in October to hear them together because they raise similar issues.

Industry groups argue the laws violate the First Amendment by forcing platforms to host speech they normally would not. The White House agrees – Solicitor General Elizabeth Prelogar asked the Court in August to take up the issue and strike down Texas’s law.

Consumer protection group Public Knowledge filed an amicus brief on Thursday in support of the tech trade groups, arguing the laws are unconstitutional and “driven by political animus.”

Center-right think tank TechFreedom filed a similar brief on Wednesday. 

“Only the state can ‘censor’ speech,” Corbin Barthold, the group’s director of appellate litigation, said in a statement. “And these states are doing so by trying to co-opt websites’ right to editorial control over the speech they disseminate.

Both groups also pushed against the states’ move to treat social media platforms as ‘common carrier’ services, a part of both laws. The legal designation, typically applied to services like railroads or voice telephone calls, requires a carrier to serve the public at just rates without unreasonable discrimination.

The states’ move to designate social media platforms as common carriers would make it more difficult for them to refuse their service to users. But the designation, the groups argued, does not map cleanly onto the service social media provides, as the platforms make editorial decisions about content they transmit – through moderation and recommendation – in a way companies like voice providers do not.

In all, at least 40 similar briefs have been filed arguing against the laws, according to the Computer and Communications Industry Association, one of the parties in the case.

A set of 15 states with Republican-led legislatures and former president Donald Trump, who had multiple social media accounts suspended after the January 2021 attack on the Capitol, have filed amicus briefs in support of Texas and Florida. The Court is expected to hear oral arguments in the case sometime in 2024.