US Supreme Court: Texas law against censorship is censorship

The US Supreme Court (SCOTUS) has blamed the lower federal appeals court for the Fifth Circuit for a “fundamental misunderstanding” of the right to freedom of expression. It has declared an online censorship law from the state of Texas impermissible, which is in clear contradiction to “principles and jurisprudence” regarding the First Amendment of the US Constitution, which protects free speech from government interference. But SCOTUS also dissatisfied with the federal appeals court for the Eleventh Circuit, which declared Florida’s online censorship law impermissible.

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Both courts did not adequately address the effects of the disputed laws. The Supreme Court returns cases with a detailed explanation of the legal position and reference to the facts to be established. The disputed laws cannot be implemented until further notice.

With 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, far beyond the borders of the two US states. In addition, online platforms would have to justify each individual decision individually. Industry associations NetChoice and the CCIA (Computer and Communications Industry Association) are fighting against the laws, arguing that they infringe on the right to freedom of expression. This includes the right not to be forced to say something you do not want to say.

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High hurdles

However, plaintiffs do not fight laws based on specific verdicts or sentences, but rather directly, before even pointing to specific applications. This is acceptable, but difficult to win. The plaintiffs then have to show that a large number of applications of the law are unconstitutional, relative to the obviously acceptable applications. The Supreme Court says, exasperatedly, “Nobody has paid much attention to this in these cases so far.”

That’s why the file for Supreme Court decisions is so thin. Even in a marathon meeting on censorship laws in February, it was unable to bridge this gap. In fact, in regulatory review proceedings, it is not SCOTUS’s job to raise facts. Lower courts are asked to do that. The Supreme Court, if it wishes, will decide certain legal questions based on the facts established there.

Content of the laws

The two laws are completely different and each is a collection of rules and regulations. Florida law (known as) SB 7072) regulates all “information services, systems, Internet search engines, or access software providers” available in Florida that have annual sales of more than $100 million worldwide or have at least 100 million monthly users. In addition to classic social networks and search engines, it also affects companies such as Uber, Etsy, and Amazon Web Services (AWS).

You are prohibited from banning political officials, political candidates and media outlets for more than 14 days, regardless of whether they have violated the terms of use. This is a response from Republicans in power in Florida to ousting Donald Trump from Twitter, Spotify, Meta platforms and other services after Trump’s coup attempt in early 2021.