Biden Officials Urge Supreme Court to Hear Cases on Social Media Laws

The Biden administration urged the Supreme Court on Monday to decide whether the Constitution allows Florida and Texas to prevent large social media companies from removing posts based on the views they express.

The administration’s brief, which was requested by the justices as they considered whether to hear the case, also urged the court to rule for the companies if review is granted.

“The platforms’ content-moderation activities are protected by the First Amendment,” Solicitor General Elizabeth B. Prelogar wrote.

The Florida and Texas laws, which are similar but not identical, were largely the product of conservative frustration. The laws’ supporters said the measures were needed to address what they called Silicon Valley censorship, notably including the decisions of some platforms to ban President Donald J. Trump’s accounts after the attack on the Capitol on Jan. 6, 2021.

Ms. Prelogar wrote that the companies’ decisions were free expression protected by the First Amendment.

“Indeed,” she wrote, “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.”

The likelihood of Supreme Court review of one or both rulings was already high before the administration filed its brief.

The laws were challenged by two trade groups, NetChoice and the Computer & Communications Industry Association, which said the First Amendment prohibits the government from telling private companies whether and how to disseminate speech.

The Florida law imposes fines on large social media platforms that refuse to transmit the views of politicians who run afoul of their standards.

The Texas law differs in its details, Judge Andrew S. Oldham wrote in a decision upholding it. “To generalize just a bit,” he wrote, the Florida law “prohibits all censorship of some speakers,” while the Texas law “prohibits some censorship of all speakers” when based on the views they express.

Federal appeals courts reached conflicting conclusions about the constitutionality of the two laws.

In May, a unanimous three-judge panel of the U.S. Court of Appeals for the 11th Circuit largely upheld a preliminary injunction blocking Florida’s law.

“Social media platforms exercise editorial judgment that is inherently expressive,” Judge Kevin C. Newsom wrote for the panel. “When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results or sanction breaches of their community standards, they engage in First Amendment-protected activity.”

But a divided three-judge panel of the Fifth Circuit reversed a lower court’s order blocking the Texas law.

“We reject the platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee,” Judge Oldham wrote for the majority. “The platforms are not newspapers. Their censorship is not speech.”

Last year, by a 5-to-4 vote, the court blocked the Texas law while the case moved forward.

Ms. Prelogar urged the court to hear both cases.

“Although the cases turn on the same fundamental question about the First Amendment status of the platforms’ content-moderation activities,” she wrote, the two laws “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.”