• by Wendy Davis  @wendyndavis, September 21, 2022

Florida's top law enforcement is asking the Supreme Court to take up an appeal over the state's social media “censorship” law, which restricts YouTube, Twitter, Facebook and other large online platforms from moderating users' posts, and requires those platforms to disclose their content policies.

Earlier this year, the 11th Circuit Court of Appeals blocked a portion of the law that would have required social media companies to carry speech that violated their policies, ruling that companies have a First Amendment right to decide what material to allow on their platforms.

That decision “strips states of their historic power to protect their citizens’ access to information, implicating questions of nationwide importance,” Florida Attorney General Ashley Moody argues in a petition filed Wednesday with the Supreme Court.

“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,” Moody writes.

Florida's law (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.

The bill also prohibits social media companies from “censoring,” “deplatforming” or “shadow banning” journalistic enterprises, based on content.

Florida 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 an anti-conservative bias.

“Silicon Valley is acting as a council of censors,” he said when he signed the bill, adding that tech companies “use shadow banning and secret algorithms to shape debates and control the flow of information.”

The tech industry groups NetChoice and Computer & Communications Industry Association sued last year to block enforcement, arguing that the law violates the First Amendment by attempting to control private companies' editorial policies.

“Rather than preventing what it calls 'censorship,' the act does the exact opposite: it empowers government officials in Florida to police the protected editorial judgment of online businesses that the state disfavors and whose perceived political viewpoints it wishes to punish,” the organizations alleged.

While the 11th Circuit blocked the portion of the law restricting content moderation, the appellate judges said the state could enforce some provisions requiring tech companies to disclose their content moderation policies.

The tech industry previously said it plans to seek Supreme Court review of that portion of the ruling.

On Wednesday, NetChoice said it agreed that the Supreme Court should take up the battle.

“We’re confident that the First Amendment rights of websites will be upheld,” Carl Szabo, NetChoice vice president and general counsel, said in a statement.

Florida isn't the only state to attempt to regulate social media companies.

Texas last year also passed a measure that prohibits Twitter, Facebook and YouTube from suppressing users' posts based on viewpoint. As was the case in Florida, the Texas law was driven by conservatives' belief that tech companies disproportionately block right-wing speech.

NetChoice and the Computer & Communications Industry Association also challenged that law in court. A trial judge blocked enforcement, but the 5th Circuit Court of Appeals reinstated the measure last week.

The tech industry is likely to seek further review of that decision.