Florida and major social-media companies could be poised for a showdown at the U.S. Supreme Court.
Lawyers for the state Wednesday filed a petition asking the Supreme Court to take up a First Amendment battle about a 2021 Florida law (SB 7072) that placed restrictions on industry giants such as Facebook and Twitter. The state wants justices to overturn a May decision by the 11th U.S. Circuit Court of Appeals that blocked key parts of the law on First Amendment grounds. The appeals court upheld much of a preliminary injunction issued by U.S. District Judge Robert Hinkle, who described the law as “riddled with imprecision and ambiguity.”
“Social media has become a dominant method of communication,” the state’s lawyers wrote in the petition. “That dominance, however, comes at a price. When social media companies abuse their market dominance to silence speech, they distort the marketplace of ideas. The question whether the First Amendment essentially disables the states — and presumably the federal government too — from meaningfully addressing those distortions should be answered by this (Supreme) Court, and it should be answered now.”
The law, approved by the Republican-controlled Legislature and Gov. Ron DeSantis, targeted companies such as Facebook and Twitter over decisions to remove politicians and other users from the social-media platforms. DeSantis made a priority of the issue after Twitter and Facebook blocked former President Donald Trump from their platforms after Trump supporters stormed the U.S. Capitol on Jan. 6, 2021.
The law, in part, would prevent the platforms from banning political candidates from their sites and to require companies to publish – and apply consistently – standards about issues such as banning users or blocking their content. Companies could face penalties for violating restrictions in the law. For example, companies that remove political candidates from platforms could face fines of $250,000 a day for statewide candidates and $25,000 a day for other candidates.
The industry groups NetChoice and the Computer & Communications Industry Association challenged the law, and Hinkle in June 2021 issued the preliminary injunction. Meanwhile, a battle has been playing out about a similar Texas law. The 5th U.S. Circuit Court of Appeals last week upheld the Texas law — creating a conflict with the 11th Circuit’s ruling that could increase the chances the Supreme Court will take up the issue. NetChoice issued a statement Wednesday saying it supports the Supreme Court taking up the Florida case.
“We agree with Florida that the U.S. Supreme Court should hear this case, and we’re confident that the First Amendment rights of websites will be upheld,” Carl Szabo, NetChoice’s vice president and general counsel, said in the statement. “We look forward to seeing Florida in court and having the lower court’s decision upheld. We have the Constitution and over a century of precedent on our side.”
The state, which is represented by lawyers from Attorney General Ashley Moody’s office, DeSantis’ office and the Washington law firm of Cooper & Kirk, said the 11th Circuit’s decision “dealt a mortal blow to the power of governments, state and federal, to protect their citizens’ access to information in the modern public square.”
“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,” said the petition, which was posted on the NetChoice website. “That ruling strips states of their historic power to protect their citizens’ access to information, implicating questions of nationwide importance.”
But in its May decision, a three-judge panel of the Atlanta-based appeals court said that, “with minor exceptions, the government can’t tell a private person or entity what to say or how to say it.
“Not in their wildest dreams could anyone in the Founding generation have imagined Facebook, Twitter, YouTube or TikTok. But ‘whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears,’” Judge Kevin Newsom wrote, partially quoting a legal precedent. “One of those ‘basic principles’ – indeed, the most basic of the basic – is that ‘(the) Free Speech Clause of the First Amendment constrains governmental actors and protects private actors.’ ”
While it kept in place most of the preliminary injunction, the appeals court tossed out part of the injunction that blocked provisions requiring social-media platforms to publish standards for determining how they censor, deplatform and “shadow ban” users. The panel also lifted the injunction on a provision prohibiting companies from changing their standards more than once every 30 days.
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