Today, the Supreme Court decided to listen Modi v. NetChoice And NetChoice v. Paxton, cases challenging Florida and Texas laws that prohibit major social media companies from using most types of content moderation, requiring them to host content they do not approve of. Eugene Volokh has additional details about the cases the court will consider here.
in NetChoice v. PaxtonThe Fifth Circuit’s 2-1 decision upheld the Texas law. Earlier, the Eleventh Circuit unanimously struck down key provisions of the Florida law, in a decision written by conservative Trump-appointed Judge Kevin Newsom.
In my previous posts on these cases, I have explained why the Texas law is a threat to free speech, and criticized claims that states can and should treat major social media companies as “common carriers” (including criticizing comparisons to telephone providers ), and argued that these laws violate the Takeover Clause of the Fifth Amendment, as well as the Free Speech Clause of the First Amendment (the takeover case is not before the court).
Last year, the Supreme Court reinstated a lower court order against the Texas law, after it was overturned by the Fifth Circuit. In my view, this action would signal that the court will rule against Texas (and Florida) on the merits, now that the case is before them.
For those keeping track, I have consistently opposed Texas and Florida laws before and after Elon Musk’s acquisition of Twitter (now known as X). I didn’t much like the content moderation policies of the pre-Musk administration, and I like Musk’s policies even less. However, both have a First Amendment right to decide which speech they wish to host, and which speech they do not wish to host. If Musk wants to kick me from Twitter/X because he doesn’t like my opinions, he should be completely free to do so.
I’m also one of the relatively few people who simultaneously support the Fifth Circuit’s recent decision to block the White House and other federal officials from forcing social media companies to remove content they deem “misinformation” and dissent from the same court’s decision (with a different panel of justices) supporting Texas social media law. The First Amendment prohibits the government from coercing social media companies get down Content that the state does not approve of and forces them to Put Content that the companies themselves object to. Hopefully the Supreme Court will see things that way as well.
Update: Although I am a former clerk for the Fifth Circuit, there are now two cases that the court has agreed to hear today that I hope the court will overturn the Fifth Circuit’s ruling: NetChoice v. Paxton And Devilliers v. Texas. I wrote about the latter case here.