Florida brings the battle over social media regulation to the Supreme Court

The Florida Attorney General on Wednesday asked the Supreme Court to decide whether states have the right to regulate how social media companies moderate content on their services. the move sends one of the most controversial debates of the internet age to the highest court in the country.

At stake is the constitutionality of state laws in Florida and Texas that would prevent social media platforms like Facebook, Twitter, and YouTube from blocking or restricting certain types of political speech. Federal appeals courts have issued conflicting rulings on the two similar laws, with the United States Court of Appeals for the 11th Circuit overturning much of the Florida law while the United States Court of Appeals for the 5th Circuit last week confirmed Texas law.

“That irreconcilable split justifies this court’s review,” Florida Attorney General Ashley Moody wrote 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 a speech they don’t want to host, such as news or posts from politicians they believe violates their rules.

The petition forms the most serious test to date for claims that Silicon Valley companies are illegally censoring conservative views, a view that gained momentum right after major social media sites suspended Donald Trump. in January 2021. If the Supreme Court agrees to hear the case, yours decision could have far-reaching effects on the future of democracy and elections, as tech companies play an increasingly significant role in disseminating news and political discussions.

Read the Florida filing for a Supreme Court hearing

Critics of state social media laws warn that it restricts tech companies’ freedom to moderate content it 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 their users’ speech rights is an important and unresolved one, said Genevieve Lakier, a professor at the University of Chicago Law School. She expects the Supreme Court to deal with it, possibly consolidating the Florida and Texas cases to deliver a single sentence.

“This is a really important question: How do we regulate social media platforms?” said the painter. “I think it could affect how the internet works in a very significant way. If these laws are respected, the platforms will have to host a lot of speeches they don’t want to host. “

The appeals court supports Texas law governing social media moderation

The Eleventh Circuit earlier this year ruled that Florida could not ban social media platforms from removing or restricting newspaper posts from candidates for office. It also eliminated a provision that would require platforms to provide warnings and explanations to users whenever they restrict or remove something they post and confirmed parts of the law that require companies to provide more transparency on their content policies.

The Florida attorney general incorporated into the state petition on the recent conservative victory of the 5th Circuit, which supported a Texas law that prohibits companies from removing positions based on a person’s political ideology. The Florida petition states that the decisions of the region courts 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 (CCIA), two industry groups representing major social media companies, filed a lawsuit to prevent the entry into force. law. Tech companies scored major victories when a federal judge blocked the law from going into effect in June last year and then when the 11th Circuit upheld much of that ruling. Tech companies say they believe they will see a similar result in the Supreme Court.

“We agree with Florida that the US Supreme Court should look into this case and are confident that First Amendment rights will be respected,” NetChoice Vice President and General Counsel Carl Szabo said in a statement. “We have the Constitution on our side and 200 years of precedents”.

As the Florida petition points out, some members of the Supreme Court have already expressed interest in resuming the controversial issues. In a dissent from a Supreme Court decision that granted an emergency suspension over Texas social media law, Judge Samuel A. Alito wrote that the case raised “major issues” that “clearly deserve review. of this court “. He added: “It’s not at all obvious how our existing precedents, which predate the Internet age, should apply to large social media companies.”

The five in the majority, including Chief Judge John G. Roberts Jr. and Judges Stephen G. Breyer, Sonia Sotomayor, Brett M. Kavanaugh, and Amy Coney Barrett, gave no reasons for their action.

Florida argues that social media companies have become so powerful that their content moderation decisions, such as the decision to suppress unsubstantiated claims about the origin of the coronavirus, or a New York Post story on Hunter Biden’s laptop, “skew. the market of ideas “. Florida claims it gives the state an irresistible interest in regulating them.

On the other hand, NetChoice argues that such decisions amount to an exercise of editorial discretion similar to editorial decisions by newspapers and television stations, which are considered protected speech under the First Amendment. This would set a high legal limit for any government to interfere with such decisions.

A Supreme Court decision would have consequences far beyond Florida, as more than 100 bills related to the moderation of social media content have been introduced into state legislatures across the country, according to a July analysis by the CCIA. Many of the state legislatures have already retired until 2023 and are closely watching how the litigation over the laws of Florida and Texas is resolved.

Although the first social media content regulation laws were passed in conservative states, liberal states are now following legislation to enforce greater transparency on how companies respond to threats and hate speech. Any decisions about states’ First Amendment power to regulate how companies control their platforms could have implications for those bills as well.