• by Wendy Davis , Staff Writer @wendyndavis, October 21, 2022

Siding with Florida's conservative leadership, an organization headed by Trump attorney John Eastman this week urged the Supreme Court to review a lower court ruling blocking a Florida law that prohibits large social media platforms from suppressing users' posts. 

The Florida law bans large social media companies from “censoring,” “deplatforming” or “shadow banning” journalistic enterprises, based on content.

The law also subjects 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 tech industry groups NetChoice and Computer & Communications Industry Association challenged the law before it could take effect, and the 11th Circuit blocked the bulk of the law on the grounds that it likely violates tech companies' First Amendment right to control the material on their platforms.

The Florida law, like a similar one in Texas, grew out of conservative officials' belief that tech companies block right-wing speech.

Florida officials recently asked the Supreme Court to review the 11th Circuit's decision, and the Center for Constitutional Jurisprudence at the right-wing Claremont Institute is supporting that request.

In a friend-of-the-court brief, the Center for Constitutional Jurisprudence, headed by Eastman, essentially argues that social media companies don't have a First Amendment right to wield editorial control over the content they publish.

"Censorship by the social media platforms does not itself appear to be a form of protected speech," the brief asserts.

The organization also makes the following questionable claim: “The platforms are not curated or edited (at least not where it is visible).”

Yet, Florida enacted the law precisely because conservative lawmakers believed social media platforms were demoting or blocking posts -- both of which are a form of curation and editing.

The brief goes on to argue that Congress passed Section 230 of the Communications Decency Act in order “to keep the social media platforms out of the censorship business.”

The law's drafter says otherwise.

“230 is all about letting private companies make their own decisions to leave up some content and take other content down,” Senator Ron Wyden (D-Oregon), co-author of the law, said in a 2019 interview with Vox.

While the 11th Circuit found the Florida law largely unconstitutional, that court upheld some provisions requiring tech companies to disclose their content moderation policies.

NetChoice and the Computer & Communications Industry Association plan to ask the Supreme Court to review that portion of the decision. The groups are expected to file their request with the court on Monday.