The US Supreme Court said on Friday it will hear cases challenging Texas and Florida laws that prohibit social media companies from censoring content posted on their platforms, in what The New York Times said will lead to “a major ruling on how the First Amendment applies to powerful tech platforms.”

The two laws, both passed in 2021, and the Supreme Court’s decision to consider them, “could have nationwide repercussions for how social media – and all websites – display user-generated content,” CNN reported.

If upheld, the laws could open the door to more state legislation with similar obligations for social media sites.

Texas House Bill 20 (HB 20) and Florida Senate Bill 7072 (SB 7072) allow users to “sue social media platforms over allegations of political censorship” and “restrict companies from taking down or demoting certain kinds of content even when the platforms may decide it violates their terms of service,” according to CNN.

The laws also could make it harder for platforms to remove what they determine is “misinformation, hate speech or other offensive material,” CNN added.

According to USA Today, the laws “limit” platforms’ ability to regulate content, “even if those posts spread a foreign government’s misinformation or provide false medical advice.”

Two tech industry trade groups, NetChoice and the Computer & Communications Industry Association, challenged the laws in 2021, saying that tech companies enjoy First Amendment protection which prevents the government from telling them “whether and how to disseminate speech,” the Times reported.

Both states’ laws were temporarily blocked by federal courts pending the completion of the appeals process.

According to The Associated Press (AP), the court’s announcement came three days before the start of its new term. A decision is expected in 2024, according to USA Today. W. Scott McCollough, an Austin, Texas-based technology attorney, welcomed the news.

“I’m glad the Supreme Court picked up the case, because what both Texas and Florida were doing is, they required individualised protection – a consumer protection measure,” he said. “It required them to inform the parties that ‘we’ve done something to you.’”

McCollough added: “The two states here recognise that these platforms have immense power. They purport to have the right to act unilaterally and subjectively to restrict posts as part of content moderation. So, the states are requiring them to give notice to the people they are censoring and tell them why they did it. This is reasonable at its face.

“If nothing else, I’ve always believed that these aspects of these two state statutes, in theory, should not have a First Amendment problem. States have forever engaged in consumer protection matters. Every state has consumer protection statutes.”

Texas HB 20 regarding “censorship of or certain other interference with digital expression, including expression on social media platforms or through electronic mail messages,” passed on September 9, 2021 and was set to take effect on December 2, 2021.

According to Politico, HB 20 “would allow both the state of Texas and individual Texans to sue companies if they ‘censor’ an individual based on their viewpoints or their geographic location by banning them or blocking, removing or otherwise discriminating against their posts.” It would apply to platforms with at least 50 million active users.

Florida SB 7072, Social Media Platforms, also known as the Stop Social Media Censorship Act, was to take effect on July 1, 2021. It sought to regulate the content moderation policies of social media platforms, barring them from banning users based on their political ideology.

According to the Times, “The sites in question are largely barred from removing posts based on the viewpoints they express, with exceptions for the sexual exploitation of children, incitement of criminal activity and some threats of violence.”

Supporters of the Florida and Texas laws “argue that the measures are needed to combat what they called Silicon Valley censorship,” including on issues like Covid-19 and claiming election fraud, the Times also reported.

Challenges to both laws resulted in conflicting rulings in federal courts. In May 2022, the US Court of Appeals for the 11th Circuit largely upheld a preliminary injunction freezing enforcement of the Florida law.

Also in May 2022, the US Supreme Court temporarily blocked enforcement of the Texas law pending completion of the appeals process. However, in September 2022, the US Court of Appeals for the 5th Circuit reversed earlier court rulings that had blocked the law.

Judge Andrew S. Oldham of the 5th Circuit wrote, “Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. The platforms are not newspapers. Their censorship is not speech.”

McCollough agreed, saying that prior legal precedent holding that “newspapers don’t have to post everybody’s letter to the editor” was based on the rationale that “there is not enough space in a newspaper to post everybody’s letter.”

The 5th Circuit is considering two other cases with First Amendment and free speech implications: Missouri et al. v. Biden et al and Kennedy et al. v. Biden et al, in which Children’s Health Defense (CHD) is a plaintiff. The 5th Circuit heard oral arguments in Missouri et al. v. Biden et al last month.

In July, the two cases were consolidated.

Legal experts said the consolidated case is likely headed to the Supreme Court after Associate Justice Samuel Alito earlier this month lifted an injunction that temporarily blocked certain Biden administration offices and officials from contact with social media giants.

The injunction, requested in the Missouri v. Biden case, on July 4 was granted by Judge Terry Doughty of the US District Court for the Western District of Louisiana Monroe Division and was later upheld under a September 8 ruling by the 5th Circuit.

Justice Alito paused it after the US Department of Justice (DOJ) submitted an emergency filing asking the Supreme Court to stay the injunction while the high court considers whether to hear the case.

The Supreme Court’s alignment in its 5-4 vote temporarily blocking the Texas law, was “unusual,” according to the AP, with liberal justice Elena Kagan joining three conservative justices – Samuel Alito, Neil Gorsuch and Clarence Thomas – in the dissenting opinion that would have allowed the law to remain in effect.

In the dissent, Justice Alito wrote, “Social media platforms have transformed the way people communicate with each other and obtain news. At issue is a groundbreaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”

Kim Mack Rosenberg, CHD’s acting general counsel, highlighted the significance of the constitutional issues the Supreme Court will consider: “We will be watching the two First Amendment cases out of Texas and Florida carefully. In these two cases, the social media companies are claiming their First Amendment rights are violated by these laws.

“In several cases in which CHD is involved, we argue that the social media platforms and the US government violated the First Amendment rights of those posting to social media and the consumers of the posts.”

• The Defender report