The Biden administration still wants the freedom to regulate social media platforms, just not in the way Florida and Texas laws are doing it.
The Justice Department, by way of Solicitor General Elizabeth Prelogar, filed a brief this week with the Supreme Court asking it to hear an appeal of a suit against state laws that dictate how platforms can moderate certain content and that require them to explain to users how they are moderating it.
The brief asserts that prohibiting Facebook or Twitter from removing or banning some content violates the First Amendment rights of those social-media outlets, which Prelogar says have such speech protection.
Just as a newspaper opinion page aggregates outside content, and is protected by the First Amendment, so, too is social media's content moderation.
"When a social-media platform selects, edits, and arranges third-party speech for presentation to the public, it engages in activity protected by the First Amendment," Prelogar wrote.
But the protection is not absolute, she told the court. "That activity, and the platforms’ business practices more generally, are not immune from regulation,” the brief said. “But here, the States have not articulated interests that justify the burdens imposed by the content-moderation restrictions under any potentially applicable form of First Amendment scrutiny."
President Joe Biden is on the record backing reforms, if not elimination, of the protections from civil liability social-media sites enjoy under Section 230 of the Communications Decency Act, and the administration clearly is not opposed to regulations requiring those sites to inform users of how they are making content-moderation decisions.
