Image: Government now works directly with Big Tech to censor social media platforms. In another time and day, that fell under prior restraint of Free Speech in violation of the United States Constitution. Perhaps, the Constitution just isn’t as important any longer.
Austin and Washington, D.C., November 15 – Texas Attorney General Paxton joined an Ohio-led petition for writ of certiorari stage amicus brief filed in the United States Supreme Court to defend a Florida law similar to Texas’s HB 20, which the Texas Legislature designed to ensure Big Tech companies don’t censor individuals merely because the companies or the Biden administration disagree with their opinion.
The Supreme Court has not yet agreed to hear the case.
Big Tech companies have begun to work closely with the Biden administration, particularly the Department of Homeland Security (DHS), to censor social media posts critical of President Biden’s handling on issues such as the withdrawal from Afghanistan or the war in Ukraine. “Platforms have got to get comfortable with gov’t. It’s really interesting how hesitant they remain,” Microsoft executive Matt Masterson, a former DHS official, texted Jen Easterly, a DHS director, in February. DHS has even worked directly with Facebook and Instagram to establish “a DHS portal” to allow the Biden administration to flag individual social media posts the government wants removed.
The coalition of states is asking the U.S. Supreme Court to review the case after a lower court—the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit—ruled against Florida. The brief notes the alarming rate at which social media companies have engaged in censorship, often against conservatives, and the direct threat that poses to the First Amendment. It also argues that in light of social media’s growing presence as the predominant public square, where citizens engage in lively and necessary discourse, states have the constitutional right to protect Americans’ access to these platforms.
This brief follows a decision in a different circuit—the New Orleans-based U.S. Court of Appeals for the Fifth Circuit—that affirmed the constitutionality of Texas’s anti-censorship law, which Attorney General Paxton defended as part of his continuing efforts to hold Big Tech accountable.
“The system cannot work if the public lacks access to the means by which citizens may engage with each other. Censorship by social-media companies thus poses a very real threat to effective self-governance,” the brief reads. “For that reason, States have passed, or are considering, laws to address the problem. Those state laws implicate the question of whether, and in what ways, the government may regulate or discourage private censorship.”