• by Wendy Davis  @wendyndavis, January 23, 2024

A coalition of 20 states are urging the Supreme Court to uphold laws in Florida and Texas that restrict tech platforms' ability to suppress posts by users.

“If dominant communication platforms censor based on viewpoint, states can pass laws to stop that censorship,” attorneys general from Missouri, Ohio and other states write in a friend-of-the-court brief filed Monday.

They are weighing in on the constitutionality of two laws -- a Texas measure (HB 20) that prohibits social platforms with at least 50 million users from removing or suppressing lawful posts based on viewpoint, and a Florida law (SB 7072) that subjects social media companies to fines for suspending or removing accounts held by statewide office seekers, and that bans large platforms from suppressing journalistic enterprises based on content.

Both statutes were fueled by right-wing lawmakers' belief that technology companies are particularly likely to suppress conservative posts.

The tech industry groups NetChoice and Computer & Communications Industry Association challenged both laws in court -- with mixed results. A trial judge blocked the bulk of the Florida law and the 11th Circuit Court of Appeals largely upheld that decision, ruling that the law likely violated the First Amendment.

A trial judge also blocked the Texas law, but the 5th Circuit Court of Appeals reversed that ruling and said the law should be reinstated.

Both laws are currently on hold, pending review by the Supreme Court.

NetChoice, the Computer & Communications Industry Association and numerous outside groups -- including the Chamber of Commerce and Interactive Advertising Bureau -- argue that both statutes unconstitutionally interfere with web publishers' free speech right to decide what material to carry on their platforms.

“Websites' ability to exercise editorial discretion and the existence of varying websites upholding diverse rules are major reasons for the Internet's success,” groups including the Interactive Advertising Bureau wrote in a friend-of-the-court brief filed last month. “Upholding either law would upend the Internet as we know it.”

The Chamber of Commerce added in a separate friend-of-the-court brief that the moves in Texas and Florida could threaten a large swath of online commerce.

The Texas and Florida framework “could be used to regulate other businesses that sell or provide products online and offer interactive features such as user reviews and messaging functions,” the Chamber of Commerce wrote.

Such laws “could lead these businesses to eliminate these highly popular features, which help consumers to make buying decisions,” the business organization adds.

Officials in Florida and Texas defend the laws by arguing that large platforms should be treated like telephone companies and other “common carriers,” which have long been prohibited from discriminating based on content.

“In hosting billions of speakers and petabytes of content, the platforms are engaged in business activity -- conduct -- that may be regulated in the public interest,” Florida's attorney general argues in papers filed last week with the Supreme Court.

“The telephone company, internet service provider, and delivery company can all be prevented from squelching or discriminating against the speech they carry. And so can the platforms,” the attorney general adds.

The 20 states that back Florida and Texas officials broadly back that contention, arguing that social media platforms are “much more like telephone networks than newspapers.”

“The law has consistently permitted requiring telephones and the like to distribute third-party speech and has generally rejected requiring the same of companies like newspapers,” the states write.

“Unlike the space constraints for newspapers, the space on social media is nearly boundless. And like telephones, nearly all speech on social media platforms is created by third parties.”

The Supreme Court is expected to hear arguments later this year and issue a decision by July.