Florida asks Supreme Court to review social media censorship law
With two lower courts diverging on whether states can interfere with social media companies' content regulation, question now lands on high court's steps
Florida’s attorney general on Wednesday asked the Supreme Court to settle a controversial legal battle playing out across the country as states attempt to regulate how social media companies moderate content on their sites.
The petition challenges a ruling on a Florida law aimed at punishing social media platforms for removing “conservative ideas” from their sites. According to Florida, social media companies have developed a “censorial streak” that allows them to manipulate “a critical forum in our marketplace of ideas.”
“In S.B. 7072, Florida took point in preventing social-media platforms from abusing their power over the public square,” Florida Solicitor General Henry Whitaker wrote in the state’s petition. “The Act, as relevant here, requires disclosure about how and when the platforms censor speech and requires the platforms to host some speech that they would otherwise prefer not to host.”
Florida’s law — known as SB 7072 — requires social media companies to disclose how and when the platforms censors speech, and to host speech they disagree with. It allows the state to fine large companies $250,000 a day if they remove an account of a statewide political candidate, and $25,000 a day if they remove an account of someone running for a local office.
Disclosure requirements included in the law require social media companies to divulge standards for how they censor, deplatform, and shadow-ban users. Companies would be required to notify users if they are being censored in any way and allow users to see how other users view their posts so they can decide for themselves if they are being censored or shadowbanned.
Two industry groups representing major social media companies — Netchoice and the Computer & Communications Industry Association — filed suit in May 2021 to prevent the law from being enacted. The companies claim the law violates the First Amendment and is unconstitutionally vague. A district court granted an injunction preventing Florida from enforcing the law, which was set to take effect last July.
The 11th Circuit affirmed the injunction on hosting rules but reversed almost all of the disclosure requirements.
Florida’s appeal to the high court comes after a Fifth Circuit ruling allowing a similar Texas law to be enacted. The state says the 11th Circuit’s ruling conflicts with the Fifth Circuit’s ruling allowing Texas’ law to be enacted. Whitaker claims that presents an "irreconcilable divide” that warrants the court’s review.
The petition asks the court if the First Amendment bars a state from forcing social media companies to host speech and regulating how they do so. It also asks the justices if the First Amendment prevents a state from requiring companies to notify and explain their censorship of users’ speech.
Some of the justices expressed interest in addressing the issue when the Texas law landed on the emergency docket in May. The justices voted 5-4 in favor of blocking the law from being enacted while an appeal in the case was pending.
In a dissent to the court’s order, Justice Samuel Alito — joined by Justices Clarence Thomas and Neil Gorsuch — cast doubt on how precedent allied in the case since the cases were decided before the internet age.
Circuit splits often make the court more likely to hear cases, but the justices have the final word on which cases they decide to take up.
The court will return from summer recess and begin its new term on Oct. 3.