States and trade groups representing tech companies asked the Supreme Court to rule on the constitutionality of the laws after the 5th Circuit upheld the Texas law in September, setting up a court split with critical implications for the future of U.S. elections. The ruling followed an 11th Circuit decision in May 2022 to strike down key provisions of a similar Florida law that barred social media companies from banning politicians.
Prelogar wrote that the Supreme Court should reverse the 5th Circuit decision and affirm the 11th Circuit’s ruling.
“The platforms’ content-moderation activities are protected by the First Amendment, and the content-moderation and individualized-explanation requirements impermissibly burden those protected activities,” she wrote.
Prelogar’s response comes at the request of the Supreme Court and clears the way for the panel to take up the cases in the next term. The cases are closely watched among tech companies and conservative politicians, who have introduced a number of similar bills in state legislatures across the country.
The Computer & Communications Industry Association, a tech trade group that has challenged the state social media laws alongside NetChoice, said it was “glad” to see the Biden administration weigh in on the First Amendment issues raised by the case.
“This is exactly the sort of case we would expect the Supreme Court to take up, because it involves a key Constitutional issue and split appellate court decisions,” CCIA said in a statement.
Prelogar, however, said that the Supreme Court should not take up all of the tech companies’ arguments. Tech companies have said that provisions of social media laws that require them to disclose details about their content moderation rules are also unconstitutional. The 11th Circuit let these provisions of the Florida social media law stand, and the solicitor general told the Supreme Court that it should not take up that dispute.
