U.S. Supreme Court questions Florida social media law

by | Feb 26, 2024

The U.S. Supreme Court deliberated on Monday the constitutionality of a Florida law restricting social media moderation, questioning potential First Amendment conflicts and the law’s demands for platforms to neutrally host all content.

The United States Supreme Court on Monday heard arguments regarding the Constitutional permissibility surrounding a state law that limits social media restrictions, expressing concerns over potential First Amendment violations.

As noted during the hearing, Justices grappled with the law’s alignment with free speech principles included in the Communications Decency Act, which shields platforms from liability for user-generated content. The panel also questioned to what extent the state would install safeguards to prevent governmental overreach.

The state, meanwhile, made the argument that social media companies should be regarded as “common carriers,” akin to utilities, obligating them to host all content neutrally and limiting traditional First Amendment protections.

“The platforms do not have a First Amendment right to apply their censorship policies in an inconsistent manner,” said Florida Solicitor General Henry Whitaker. “The state has a First Amendment interest in promoting and ensuring the free dissemination of ideas.”

Whitaker also harkened past court rulings, specifically Twitter v. Taamneh, which considered whether Internet service providers are liable for “aiding and abetting” a designated foreign terrorist organization in an “act of international terrorism”, on account of recommending such content posted by users.

“The platforms do not have a First Amendment right to apply their censorship policies and inconsistent manner, and to censor and  de-platform certain users,” he said.

Chief Justice John Roberts retorted, asserting that the First Amendment directs what governmental authorities can and cannot do, not social media companies.

“The First Amendment doesn’t apply to them,” Roberts said, broadly referring to companies like Meta and X. “What the government is doing here is … not the First Amendment.”

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.

Ahead of the hearing, attorneys representing Florida argued that major social media platforms hold a “virtual monopoly” over social media expression. They also claimed a 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.

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 August, 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), who represents some of the world’s largest tech companies, including Google parent company Alphabet, Facebook parent company Meta, and X, formerly known as Twitter.

A survey commissioned by the CCIA Research Center indicates broad opposition among Americans to increased government control over social media content.

Findings showed that 92 percent of respondents believe state governments should have the least influence over social media content moderation, preferring instead that platforms and their users have the autonomy to decide what content is appropriate.

Additionally, 60 percent of survey respondents noted the importance of upholding the First Amendment rights online, even in cases involving distasteful content, while 86 percent of participants said that governments should not have more control over social media content than companies that own the platform.

“Generally, respondents supported users or companies deciding what content was appropriate for their online communities, not government,” said CCIA President Matt Schruers during a press conference. “There was broad agreement among people of all political leanings.”


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