- Multiple petitions in cases that pose key questions about how the First Amendment applies online are still pending, and the Supreme Court already granted review in April to two cases that consider whether government officials who blocked constituents on social media were acting in an official capacity.
- The Supreme Court appears likely to take a set of cases challenging laws passed in Florida and Texas that are intended to stop Big Tech platforms from censoring based on viewpoint.
- “It’s going to be a significant term in terms of defining the future of internet freedom,” Foundation for Individual Rights and Expression Chief Counsel Bob Corn-Revere told the Daily Caller News Foundation.
The Supreme Court will have an opportunity next term to weigh in on big questions surrounding online speech and the First Amendment.
The justices already granted review in April to two cases, Lindke v. Freed and Garnier v. O’Connor-Ratcliff, that consider whether government officials who blocked constituents on social media were acting in an official capacity. Petitions in multiple other cases that pose key questions about how the First Amendment applies online are still pending.
“It’s going to be a significant term in terms of defining the future of internet freedom,” Foundation for Individual Rights and Expression Chief Counsel Bob Corn-Revere told the Daily Caller News Foundation.
The Garnier case deals with two California school board members who blocked parents on social media over critical comments, which the Ninth Circuit ruled was a violation of the First Amendment because the officials operated on social media “under color of state law.” The Lindke case addresses Port Huron, Michigan, City Manager James Freed’s decision to block a constituent who posted comments criticizing his handling of COVID-19, though the Sixth Circuit determined in that case that Freed was “acting in his personal capacity—and there was no state action.”
Justice Clarence Thomas forecasted the need for the high court to address such questions in a concurring opinion from 2021. The Supreme Court had vacated an appeals court ruling that found former President Donald Trump’s decision to block individuals who criticized him on Twitter violated the First Amendment, deeming the lawsuit moot because Joe Biden had taken office.
“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors,” Thomas wrote at the time. “We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”
But the question posed in other cases the Supreme Court could take up next term extends beyond the actions of individual officials. Other cases with petitions before the court call into question state government attempts to influence platforms’ content moderation policies and agency-led efforts to police “misinformation” online.
Rogan O’Handley, a former entertainment lawyer and current conservative political commentator, filed a petition with the Supreme Court in June asking it to hear his lawsuit challenging the California Secretary of State’s Office of Election Cybersecurity’s coordination with Twitter to monitor “false or misleading” election information.
O’Handley alleges he was censored and suspended by Twitter after the California agency flagged his account over a post about the 2020 election. The Ninth Circuit backed the state, explaining that California “has a strong interest in expressing its views on the integrity of its electoral process.”
“We think the court is very interested in these questions,” Center for American Liberty Associate Litigation Counsel Eric Sell, one of O’Handley’s lawyers, previously told the DCNF. “The First Amendment and social media [are] very important. It’s something that affects most people’s lives on a regular basis.”
O’Handley’s case is similar to a major free speech lawsuit pending in the Fifth Circuit, Missouri v. Biden, which deals with the federal government’s efforts to police misinformation online. The Fifth Circuit heard oral arguments Aug. 10 in Missouri v. Biden to consider a federal judge’s decision to grant an injunction barring federal officials from communicating with social media companies for the purposes of censoring protected speech.
Judges asked tough questions during the hearing, with one comparing the Biden administration’s relationship with Big Tech to the mob.
The Supreme Court could also take a set of cases challenging laws passed in Florida and Texas that are intended to stop Big Tech platforms from censoring based on viewpoint. The Biden administration opposed the laws and urged the Supreme Court to take up the case and strike down the laws.
“The platforms’ content-moderation activities are protected by the First Amendment,” U.S. Solicitor General Elizabeth Prelogar wrote in an Aug. 14 brief. “Given the torrent of content created on the platforms, one of their central functions is to make choices about which content will be displayed to which users, in which form and which order.”
The 11th Circuit Court of Appeals found Florida’s law, which prevents platforms from suspending political candidates and “journalistic enterprises,” to likely be unconstitutional. The 5th Circuit Court of Appeals backed Texas’s broader law, which prohibits platforms with over 50 million monthly U.S. users from censoring based on their viewpoint, rejecting the idea that “corporations have a freewheeling First Amendment right to censor what people say.”
Corn-Revere said a Supreme Court ruling in these cases would have “significant ramifications for free speech online.”
“If the government can control the editorial moderation standards of online platforms, then the government can essentially control online speech,” he told the DCNF. “The court has not yet accepted those two cases but it’s widely believed that it will.”
The Supreme Court frequently listens to the views of the Solicitor General, Corn-Revere noted.
Last term, the Supreme Court sided with tech companies in a pair of cases, Twitter v. Taamneh and Gonzalez v. Google, which tested the extent of immunity social media companies have for content hosted on their platform.
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