“That irreconcilable divide warrants this Court’s review,” wrote Florida Attorney General Ashley Moody in the petition to the Supreme Court. Specifically, the petition asks the court to determine whether the First Amendment prohibits states from forcing platforms to host speech that they don’t want to host — such as news stories or posts by politicians that they deem to violate their rules.
The petition sets up the most serious test to date of assertions that Silicon Valley companies are unlawfully censoring conservative viewpoints, a view that gained momentum on the right after major social media sites suspended Donald Trump in January 2021. If the Supreme Court agrees to hear the case, its decision could have wide-ranging effects on the future of democracy and elections, as tech companies play an increasingly significant role in disseminating news and discussion about politics.
Read Florida’s filing for a Supreme Court hearing
Critics of the state social media laws warn that restricting tech companies’ freedom to moderate content could lead to a torrent of hate speech, misinformation and other violent material.
The question of how the First Amendment rights of social media companies interact with the speech rights of their users is important and unresolved, said Genevieve Lakier, professor of law at University of Chicago Law School. She expects the Supreme Court to take it up, possibly by consolidating the Florida and Texas cases to issue a single ruling.
“This is a really major question: How do we regulate social media platforms?” Lakier mentioned. “I think it could shape the operation of the internet really significantly. If these laws are upheld, it’s going to require the platforms to host a lot of speech that they don’t want to host.”
Appeals court upholds Texas law regulating social media moderation
The 11th Circuit earlier this year ruled that Florida could not prohibit social media platforms from removing or limiting the posts of news organizations of candidates for office. It also struck down a provision that would require platforms to provide notice and explanation to users anytime it limits or removes something they post. It upheld parts of the law requiring companies to provide more transparency on their content policies.
The Florida attorney general incorporated in its petition the recent conservative victory from the 5th Circuit, which upheld a Texas law that bars companies from removing posts based on a person’s political ideology. The Florida petition says the circuit courts’ decisions are in conflict, and the Supreme Court must resolve those differences. Moody did not immediately respond to a request for comment.
The legal battle over the Florida law began in May 2021, when Netchoice and the Computer & Communications Industry Association, two industry groups representing major social media companies, filed a lawsuit to block the law from taking effect. The tech companies scored major victories when a federal judge in June of last year blocked the law from taking effect and then when the 11th Circuit upheld much of that ruling. The tech companies say they believe they will see a similar outcome in the Supreme Court.
“We agree with Florida that the U.S. Supreme Court should hear this case, and we’re confident that First Amendment rights will be upheld,” Netchoice vice president and general counsel Carl Szabo said in a statement. “We have the Constitution and 200 years of precedent on our side.”
As the Florida petition points out, some members of the Supreme Court have already expressed an interest in taking up the questions at issue. In a dissent from a Supreme Court decision that granted an emergency stay on the Texas social media law, Justice Samuel A. Alito wrote that the case raised “issues of great importance” that “plainly merit this court’s review.” He added, “It isn’t in any respect apparent how our current precedents, which predate the age of the web, ought to apply to giant social media corporations.”
Florida argues that social media corporations have grown so highly effective that their content material moderation selections, resembling the choice to suppress conspiracy theories in regards to the origin of Covid-19, or a New York Put up story about Hunter Biden’s laptop computer, “distort the marketplace of ideas.” Florida contends that provides the state a compelling curiosity in regulating them.
On the opposite facet, Netchoice argues that such selections quantity to an train of editorial discretion akin to the editorial selections of newspapers and TV stations–which are thought-about protected speech below the First Modification. That might set a excessive authorized bar for any authorities to intervene with these selections.
A Supreme Court resolution would have penalties that stretch far past Florida, as greater than 100 payments associated to social media content material moderation have been launched in state legislatures throughout the nation, in line with a July evaluation from CCIA. Most of the state legislatures have already recessed till 2023, and they’re carefully watching how the litigation over the Florida and Texas legal guidelines resolves.
Although the primary social media content material regulation legal guidelines had been handed in conservative states, liberal states are actually following with laws to drive extra transparency on how the businesses reply to threatening and hate speech. Any resolution on states’ First Modification energy to control how corporations police their platforms may have implications for these payments as properly.