US Supreme Court: Texas' law against censorship is censorship
Texas wants to ban social networks from deleting or not rewarding postings. Florida has also issued bans. The US Supreme Court is furious.
The US Supreme Court building in Washington, DC
(Image: Sunira Moses CC BY-SA 3.0)
The US Supreme Court (SCOTUS) has accused the lower federal appeals court for the Fifth Circuit of "fundamentally misunderstanding" the right to free speech. This is because it has declared an online censorship law of the state of Texas to be permissible, in clear contradiction to "principles and jurisprudence" regarding the First Amendment of the US Constitution, which protects free speech from state interference. However, the SCOTUS is also dissatisfied with the Federal Court of Appeals for the Eleventh Circuit, which declared a Florida online censorship law illegal.
This is because both courts failed to adequately address the impact of the challenged laws. The Supreme Court sends the cases back with detailed explanations of the legal situation and references to the facts to be collected. The contested laws may not be applied until further notice.
With the laws passed in 2022, Florida and Texas want to deeply interfere with the freedom of large online platforms to decide what content they host or what content they reward financially. This would have far-reaching effects on the World Wide Web, beyond the borders of the two US states. In addition, the online platforms would have to justify each individual decision. The industry associations Netchoice and CCIA (Computer and Communications Industry Association) are fighting the laws, arguing that they violate the right to free speech, which also includes the right not to be forced to say something you would rather not say.
High hurdle
However, the plaintiffs are not fighting the laws because of specific decisions or penalties, but directly, even before they could point to specific cases of application. This is permissible, but more difficult to win. This is because the plaintiffs must then show that a substantial number of applications of the law are unconstitutional, relative to clearly permissible applications. "No one has paid much attention to this in these cases so far", says the Supreme Court with annoyance.
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This is why the case file is too thin for the Supreme Court to decide. Even in a marathon session on the censorship laws in February, it was unable to close the gap. In fact, it is not the task of the SCOTUS to establish the facts in judicial review proceedings. This is the job of lower courts. The Supreme Court merely decides certain legal questions, if it so wishes, because of the facts established there.
The content of the laws
The two laws are quite different and are each a collection of provisions. Florida's law (known as SB 7072) regulates all "information services, systems, Internet search engines, or access software providers" available in Florida that have an annual worldwide turnover of more than 100 million US dollars or have at least 100 million monthly users. In addition to traditional social networks and search engines, this also affects companies such as Uber, Etsy and Amazon Web Services (AWS).
They will be prohibited from excluding political office holders, political candidates and media companies for longer than 14 days, even if they have violated terms of use. This is a response by the Republicans in power in Florida to the exclusion of Donald Trump by Twitter, Spotify, Meta Platforms and other services following Trump's attempted coup in early 2021.
