SCOTUS asks the Biden administration for its views on the constitutionality of Florida's and Texas' social media laws, likely postponing a decision until 2024
The laws, enacted by Florida and Texas in response to conservative complaints about censorship, have been challenged under the First Amendment.
Context & Ripple Effects
Three days after reporting that the Court might take up the challenges at its Friday conference — alongside a February slate of Section 230 arguments — the justices did what they often do on politically charged petitions: they asked the Solicitor General to weigh in first. That call for views effectively freezes the docket, since the Court rarely grants or denies cert before the government responds.
The arc that follows shows why the pause mattered. By August the administration had filed its brief urging review of key parts of both laws (per Bloomberg's report of the filing), the Court granted cert that fall, and after arguments it ultimately sent both laws back to the lower courts for proper First Amendment analysis — so this January request was the first domino in a decision that stretched well past the 2024 date the Times projected.
First-order effects
- Florida and Texas' moderation restrictions stay in limbo: the CVSG means no cert decision until the Solicitor General files, leaving platforms operating under conflicting lower-court rulings in the two states.
- The Biden administration is handed a decisive role — its brief on which parts of the laws, if any, survive First Amendment scrutiny becomes the practical blueprint for what the Court will actually review.
Second-order effects
- The administration's eventual position — urging review of key provisions rather than defending or condemning the laws wholesale — signals other states drafting similar statutes that a partial, provision-by-probision challenge is the likeliest path, shaping how future censorship bills are written.
- Social media companies get a longer runway under the existing injunctions, but also prolonged legal uncertainty over whether moderation of political posts and accounts can be state-mandated.
Third-order effects
- The remand the Court eventually ordered — faulting both lower courts for skipping proper First Amendment analysis — points to a structural pattern: state content-moderation laws will be litigated provision by provision for years, with the Supreme Court setting the analytical standard rather than issuing a clean up-or-down ruling.
- The episode cements the Solicitor General as gatekeeper for tech-regulation cases, giving whichever administration holds the office outsized influence over which platform-governance disputes reach the justices.
The trend: State laws regulating platform moderation are turning the Supreme Court into the recurring arbiter of content governance, with the Solicitor General's views deciding which disputes — and which provisions — get heard.