SCOTUS Seeks DOJ Input in Texas, Florida Social Media Cases

Justices invited briefs from the solicitor general in dockets 22-277, 22-393 and 22-555. The court wouldn’t seek the department’s opinion unless it planned to grant cert, NetChoice Counsel Chris Marchese said in an interview Monday. The trade association expects DOJ to support the request for high court review, he said. Because Florida, Texas and the tech groups agree on the need, it’s a much more straightforward process than if they disagreed, he said. It’s going to take at least a month for DOJ to schedule and do interviews with the various parties, but it seems clear the solicitor general will recognize the need for review -- if not in the immediate future, at least in the fall, said Marchese: “You can’t make these issues go away by just hoping they go away.”

The court is likely “playing for time” given how “inevitable” SCOTUS review seems, said TechFreedom Internet Policy Counsel Corbin Barthold. The court wouldn’t seek the solicitor general’s input if they definitely weren’t going to grant cert, but requiring the extra step effectively closes the door on SCOTUS hearing the case this term, Barthold said: “Even if the solicitor general were to move with dispatch, we’re already late in the day for hearing something this term.” The Supreme Court already has a busy docket that includes a Section 230 case in Gonzalez v. Google (see 2301130028), said Barthold: “It could be that they want to settle Section 230 issue before turning to these other issues.” Or the court might want the solicitor general’s opinion on how to take the case from a procedural standpoint, since two cases are related, he said. The offices for Texas Attorney General Ken Paxton (R) and Florida AG Ashley Moody (R) didn't comment.

It’s “crucial” that the Supreme Court “ultimately resolve this matter,” said Computer & Communications Industry Association President Matt Schruers in a statement. “It would be a dangerous precedent to let government insert itself into the decisions private companies make on what material to publish or disseminate online. The First Amendment protects both the right to speak and the right not to be compelled to speak, and we should not underestimate the consequences of giving government control over online speech in a democracy.”

Whatever the Supreme Court decides in Gonzalez shouldn’t affect whether the court takes up one or both cases concerning Florida and Texas, said Chamber of Progress Legal Advocacy Counsel Jess Miers: Gonzalez is a pure Communications Decency Act Section 230 question, whereas the issues in Florida and Texas hinge more on questions about the First Amendment. The chamber hopes the court takes these cases up, whether they're joined or not, she said: “This is a unique, incredibly important First Amendment question that we have to resolve. It’s going to have impact” on other state laws and bills related to content moderation and treating platforms like common carriers.

“There was little reason not to grant cert in either social media case, what with there being no opposition to review of the Texas case and both parties petitioning for review of the Florida one,” emailed attorney Cathy Gellis, who filed an amicus brief in November for Floor64 in the Florida case. “Such review is really not something that the Court needs the Solicitor General to bless, or, worse, potentially derail.” The latter should be a concern because the solicitor general gave an “extremely poor defense of free expression in the 303 Creative web design case, the Warhol fair use case, and the Gonzalez platform liability case,” she said. In each pending docket, the solicitor general “missed the expressive liberty at stake, and even attacked it.”

Gellis agreed SCOTUS might be trying to delay the cases until next term. “It may have felt overloaded on the free expression front and wanted the dust to settle on those cases before picking up these new ones,” she said. “But the delay means we are left with a very unsettled status quo.” The Texas and Florida laws “haven't been enjoined entirely, and meanwhile other states are rushing to enact their own laws imposing liability on platforms for exercising what should be First Amendment-protected discretion,” she said.