• by Wendy Davis , Staff Writer @wendyndavis, November 30, 2023

A Texas law preventing social media platforms from removing offensive posts would “fundamentally change” the platforms, leaving them “overrun with objectionable expression that would drive away users and advertisers -- and contradict the websites’ own principles.”

That's according to the tech industry groups NetChoice and Computer & Communications Industry Association, which on Thursday asked the Supreme Court to strike down the Texas law as well as a similar measure in Florida.

The Texas statute (HB 20) prohibits social media platforms with at least 50 million users from removing or suppressing lawful posts based on viewpoint -- even posts with false information about vaccines, or the Holocaust.

Florida's comparable law (SB 7072) 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 suspending for more than 14 days or banning.) The Florida statute also prohibits large social media platforms from “censoring” journalistic enterprises based on content. Other provisions require platforms to disclose their policies regarding acceptable content.

Laws in both states were fueled by right-wing lawmakers' belief that technology companies are especially likely to suppress conservative posts.

The Interactive Advertising Bureau opposed both bills.

“Businesses large and small want to know that their advertising and marketing is reaching its intended audience without having their ads placed next to content they deem to be offensive or untrue,” IAB executive vice president for public policy Lartease Tiffith stated last year.

NetChoice and Computer & Communications Industry Association sued to block both bills, with mixed success. In Florida, a trial judge and appellate court mostly agreed that the law violated the First Amendment and blocked enforcement of many provisions on that basis.

In Texas, a trial judge blocked the law, but the 5th Circuit Court of Appeals found the measure valid.

The Supreme Court agreed to rule on both states' laws, and stayed enforcement of the Texas measure while the matter is pending.

NetChoice and the Computer & Communications Industry Association argued in papers filed Thursday that both states' laws unconstitutionally interfere with private companies' editorial decisions.

“While the state is free to criticize websites for their decisions about what content to display, disseminate, remove, or restrict, the First Amendment prohibits the state from countermanding those editorial decisions and substituting its own judgment,” the groups write in the Florida case. “Just as Florida may not tell the New York Times what opinion pieces to publish or Fox News what interviews to air, it may not tell Facebook and YouTube what content to disseminate.”

The groups also raise practical concerns with the statutes -- including that requiring platforms to carry all users' speech would drive away many consumers and advertisers.

The organizations write that the Texas laws' prohibition on “viewpoint” discrimination “would require covered websites to display tens of millions of posts per year containing myriad messages with which they may disagree, from antisemitic speech to terrorist propaganda.”

“Viewers and advertisers will inevitably attribute this objectionable content to the websites,” the groups say, noting that numerous large brands boycotted Meta Platforms in 2020, and YouTube in 2017. Both boycotts were largely driven by concerns over offensive content posted by users.

“Unrebutted evidence confirms that governmental interference with editorial discretion is costly as well as unconstitutional, as users and advertisers will leave the websites if they are required to display objectionable speech, costing websites millions of dollars,” the groups write.

Texas and Florida officials are expected to respond by January 16.