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Supreme Court puts off showdown over internet moderation bans in Texas and Florida

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The court will still hear arguments for a major Section 230 case in February.

The Supreme Court has asked the US solicitor general to submit briefs in a set of lawsuits over internet moderation in Texas and Florida, making the court likely to take one or both of the cases with a delay. As noted by CNN reporter Brian Fung this morning, the court solicited the briefs in a Monday morning list of orders, inviting President Joe Biden’s Department of Justice to formulate an official position on internet speech.

The orders cover lawsuits by trade organization NetChoice against Texas Attorney General Ken Paxton and Florida Attorney General Ashley Moody as well as a counterclaim by Moody against NetChoice. Both states passed laws making it illegal for large web services to suspend or otherwise penalize users in many cases, particularly instances that Republican lawmakers have characterized as biased against conservative politics. A series of temporary injunctions have left both laws on hold — the Florida rule thanks to an appeals court decision and the Texas one due to a NetChoice Supreme Court petition, where a dissenting opinion indicated the Supreme Court would likely consider the issue.

The Supreme Court is already slated to imminently consider two cases that could have a huge impact on internet moderation. In February it will hear Gonzalez v. Google and Twitter v. Taamneh, which deal respectively with the scope of Section 230 of the Communications Decency Act and US anti-terrorism law. A number of internet services — including Reddit, Roblox, Microsoft, Meta, and the Wikimedia Foundation — filed briefs last week supporting Google and encouraging the court not to narrow its definition of Section 230.

The Texas and Florida laws could lead to even more sweeping decisions. State lawmakers have argued that requiring sites to avoid moderating content — including hate speech or misinformation — does not violate the First Amendment’s prohibition on compelling companies to carry specific speech. At least one conservative member of the Supreme Court, Justice Clarence Thomas, has pushed for an interpretation of the First Amendment that could allow the laws to stand.

Biden’s administration is likely to disagree with the current conservative push to regulate social media moderation. But Biden has encouraged vague legal changes that would make companies “take responsibility” for the content on their platforms — which could also put his administration at odds with a laissez-faire approach to internet law.

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