Florida officials as well as two tech industry associations plan to ask the Supreme Court to decide whether the state can enforce a law that restricts YouTube, Twitter, Facebook and other large social media companies from moderating content.
Last month, a three-judge panel of the 11th Circuit Court of Appeals blocked most of the Florida law, ruling that social media companies have a First Amendment right to decide what material to allow on their platforms. But the panel allowed the state to enforce some of the law's provisions that require tech companies to disclose their content moderation policies.
If enforced, the measure (SB 7072) would subject social media companies to fines of $250,000 per day for “deplatforming” candidates for statewide office, and $25,000 per day for other offices. The bill defines deplatforming as banning a user for more than 14 days, or permanently deleting the user's account.
That law also prohibits social media companies from “censoring,” “deplatforming” or “shadow banning” journalistic enterprises, based on content.
Late last week, representatives from Florida as well as the industry groups NetChoice and Computer & Communications Industry Association said in court papers that they plan to ask the Supreme Court to rule on the measure. Florida officials presumably will urge the Supreme Court to allow the law to take effect, while the tech industry groups will likely seek to block the statute entirely -- including the provisions currently in force.
“This case plainly presents important questions that warrant Supreme Court review,” the tech industry and Florida officials said in papers filed Friday with the 11th Circuit. “Whether and to what extent states may regulate social media platforms is an issue of profound importance.”
Both sides are asking the 11th Circuit to delay finalizing its ruling until the Supreme Court decides whether to take up the case.
Florida lawmakers passed the measure last year, soon after the state's Republican governor, Ron DeSantis, called for a crackdown on tech companies due to their supposed anti-conservative bias.
NetChoice and the Computer & Communications Industry Association sought an injunction against enforcement, arguing that the law violates the First Amendment by interfering with private companies' editorial decisions. The organizations also said Section 230 of the Communications Decency Act -- which protects websites from liability for content moderation decisions -- overrides the measure.
In June of 2021, U.S. District Court Judge Robert Hinkle in Tallahassee blocked large portions of the law on the grounds that they likely violated the First Amendment.
Florida then appealed that ruling to the 11th Circuit, which also largely blocked the law.
“We hold that it is substantially likely that social-media companies -- even the biggest ones -- are 'private actors' whose rights the First Amendment protects,” Circuit Judge Kevin Newsom, a Trump appointee, wrote last month in an opinion joined by Circuit Judges Gerald Tjoflat and Ed Carnes.
Florida officials unsuccessfully argued that the new law merely extends “common carrier” rules -- including rules that have long prohibited telephone companies from denying service to people based on their opinions -- to social media platforms.
The appellate judges rejected that comparison, writing that social media companies like Facebook, and unlike telephone carriers, have always had rules about the type of content they would allow on their services.
“Neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier,” he wrote. “In short, because social-media platforms exercise -- and have historically exercised -- inherently expressive editorial judgment, they aren’t common carriers.”
Late last month, the Supreme Court blocked enforcement of a similar Texas law that would have prohibited Twitter, YouTube, Facebook and other large tech platforms from suppressing lawful posts based on viewpoint -- including posts that are racist, sexist, misleading, or otherwise objectionable.