• by Wendy Davis  @wendyndavis, October 25, 2022

Florida's social media law violates the First Amendment by prohibiting online companies from suppressing users' posts, and also by requiring the companies to disclose their content moderation policies, the tech industry groups NetChoice and Computer & Communications Industry Association argue in papers filed this week with the Supreme Court.

The papers come in a battle over Florida's SB 7072, which imposes sweeping requirements on YouTube, Twitter, Meta and other large social platforms.

The bill, passed last year, 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 or suspending for more than 14 days.)

It also prohibits social media companies from “censoring,” “deplatforming” or “shadow banning” journalistic enterprises based on content. Other provisions require platforms to disclose their policies regarding acceptable content.

The 11th Circuit Court of Appeals blocked the bulk of the law last year, ruling that prohibiting companies from engaging in content moderation violates their First Amendment rights. But that court allowed the state to enforce some provisions requiring companies to disclose their policies.

Florida officials recently urged the Supreme Court to review the portion of the ruling that blocked the law.

This week, NetChoice and the Computer & Communications Industry Association responded that the Supreme Court should also review the disclosure provisions left standing by the 11th Circuit.

“There is no reason for this court to review half a loaf,” the groups write. “The law’s direct interference with editorial discretion and its disclosure requirements are designed to work together to achieve the objective of government manipulation to 'level the playing field' by counteracting the perceived bias of large social media websites.”

The organizations say the mandatory disclosure provisions are unconstitutional for several reasons, including that the First Amendment generally prevents the government from compelling speech.

While there's an exception for commercial advertising, the tech industry argues that exception doesn't cover social media companies' terms of service.

“S.B. 7072’s disclosure requirements have nothing to do with advertising, let alone with preventing misleading advertising,” the groups write. “Rather, the point of the disclosure requirements is to make it easier for parties to sue websites for perceived inconsistencies in how they exercise their editorial discretion.”

The Florida law, like a similar measure in Texas, was driven by conservatives' belief that tech companies are particularly likely to suppress right-wing speech.

The tech industry also challenged the Texas law. The 5th Circuit Court of Appeals said the law was likely constitutional, but blocked enforcement pending a decision by the Supreme Court.