SCOTUS to weigh First Amendment implications of struck-down Florida social media legislation

by | Sep 29, 2023

  • The Supreme Court of the United States (SCOTUS) stated on Friday morning that it will review the constitutionality of social media laws in Florida and Texas.
  • Florida’s case, Moody v. Netchoice, LLC., argues that social media platforms’ content hosting and censorship decisions should not be protected speech under the First Amendment. The case is related to a 2021 Florida law regulating social media companies that de-platform political candidates and requires them to publish content moderation standards.
  • The dispute involves the Eleventh Circuit’s ruling invalidating Florida’s law, a U.S. Court of Appeals for the 5th Circuit decision upholding a similar Texas law, and arguments from former President Donald Trump in support of the Florida statute.
  • The Biden administration has also called for SCOTUS to review parts of these laws, arguing they infringe on social media platforms’ First Amendment rights.

The Supreme Court of the United States (SCOTUS) announced that it will weigh the constitutionality of social media laws in Florida and Texas.

On Friday morning, the Court issued an order that includes Florida’s case, Moody v. Netchoice, LLC., signaling that it will hold hearings and reach a decision, likely next year. In the challenge, Florida argues that social media platforms’ choices to host or censor content should not be considered protected speech. Instead, they assert that the pertinent First Amendment concerns pertain to the rights of Florida residents.

The case centers around a 2021 Florida law that imposes fines, ranging from $25,000 to $250,000 per day, on large social media companies that removed or de-platformed political candidates.  Another aspect of the Florida legislation requires social media companies to publish standards about issues such as blocking users and apply the standards consistently.

Attorneys representing Florida emphasized that major social media platforms ostensibly hold a “virtual monopoly” over social media expression. They also pointed out the disparity between the 11th Circuit’s ruling, which invalidated Florida’s law, and a recent decision by the U.S. Court of Appeals for the 5th Circuit, which upheld a similar law in Texas.

“Under the Eleventh Circuit’s reasoning, social-media behemoths have a First Amendment right to cut any person out of the modern town square, for any reason, even when they do not follow their own rules or otherwise act in bad faith,” reads Florida’s petition for a Writ of Certiorari, filed in 2021. “That ruling strips States of their historic power to protect their citizens’ access to information, implicating questions of nationwide importance.”

One month after Florida petitioned the Supreme Court, former president Donald Trump filed a brief in support of the state, contending that social media companies have significant influence over public discourse and political life due to their economic power. Trump expressed support for the statute and elucidated his belief it does not dictate what content should be allowed or banned but rather focuses on transparency and fairness.

“This concern is heightened because Platforms often shroud decisions to exclude certain users and viewpoints in secrecy, giving no meaningful explanation as to why certain users are excluded while others posting equivalent content are tolerated,” says Trump’s brief. “These Sections do not compel Platforms to carry or ban any messages; they impose no rules as to what is and is not permissible. They merely ensure that whatever rules the Platforms adopt are fully disclosed and consistently applied.”

Gov. Ron DeSantis signed the legislation into law in 2021 after the state House voted 77-38 to pass the bill and the state Senate approved it in a 23-17 vote. Florida’s law includes 12 major provisions and requires platforms to furnish a “thorough rationale” for each content moderation decision, a requirement the 11th Circuit deemed “particularly onerous.”

The law also prevents platforms from banning political candidates or “journalistic enterprises” and, like Texas’ law, is targeted at the largest social media companies.

“Social media platforms have unfairly censored, shadow banned, deplatformed, and applied post-prioritization algorithms to Floridians,” reads the measure. “The state has a substantial interest in protecting its residents from inconsistent and unfair actions by social media platforms.”

Both the U.S. District Court for the Northern District of Florida and the 11th U.S. Circuit Court of Appeals blocked the Florida law from taking effect, citing concerns related to the First Amendment, leading the state to subsequently petition the SCOTUS to take up the case.

Last month, the Biden administration called upon SCOTUS to examine parts of the Florida and Texas laws, arguing that the measures infringe on the First Amendment rights of the companies. U.S. Solicitor General Elizabeth Prelogar filed the court briefing, saying that the Republican-backed laws hamper the social media platforms’ freedom to curate content and necessitate intricate justifications for their content-moderation choices.

The filing came in support of two industry trade groups who are challenging the laws: NetChoice and the Computer & Communications Industry Association (CCIA), which represent some of the world’s largest tech companies, including Google parent company Alphabet, Facebook parent company Meta, and X, formerly known as Twitter.


%d bloggers like this: