A majority of U.S. states are considering enacting laws that regulate social media platforms. To date, two states—Florida and Texas—have passed such laws. The laws limit the power of the largest social media companies to moderate and curate speech on their platforms, and they require the companies to disclose certain information to the public. Two trade organizations representing the social media companies are challenging both laws. Federal district courts enjoined each law, holding that the companies were likely to succeed on their First Amendment challenges, and the cases were appealed.
On May 23, 2022, the Eleventh Circuit struck down the part of the Florida law that limits the power of social media platforms to moderate and curate content, but upheld the law’s disclosure provisions. On September 16, 2022, the Fifth Circuit, in contrast, upheld Texas’s law in its entirety.
The Knight Institute filed amicus briefs in both cases: this case when it was pending before the Fifth Circuit (NetChoice, LLC v. Paxton), and the Florida case (NetChoice, LLC v. Attorney General, State of Florida), when it was pending before Eleventh Circuit, which you can read more about here.
On April 8, 2022, the Knight Institute filed an amicus brief in the Fifth Circuit in support of NetChoice’s challenge to Texas’s law. The brief similarly urges the court to reject the parties’ all-or-nothing arguments. It then argues that the Texas law’s key provision—which prohibits social media platforms from removing or labelling user posts—violates the First Amendment. And it argues that the law’s provisions requiring social media companies to disclose information about how they moderate and curate user content should be evaluated under the legal framework set out in the Supreme Court’s Zauderer decision, which applies deferential scrutiny to laws compelling companies to disclose factual and uncontroversial information about their services.
Status: On September 16, 2022, the Fifth Circuit upheld Texas's social media law in its entirety.
Case Information: NetChoice, LLC, v. Paxton, No. 21-51178 (5th Cir.).