The constitutionality of state laws regulating
Florida asked the justices Sept. 21 to review a US Court of Appeals for the Eleventh Circuit decision largely blocking its law barring platforms from suspending politicianâs accounts. The move followed a Sept. 16 decision by the US Court of Appeals for the Fifth Circuit upholding a Texas law that bars platforms with more than 50 million users from content discrimination on the basis ofto viewpoint.
Floridaâs petition gives the high court a chance to weigh in on whether the First Amendment shields social media from such government-imposed restrictions.
âIt would be surprising to me if we do not get a Supreme Court opinion on this matter, and this term,â said Eric Goldman, a Santa Clara University School of Law professor specializing in internet regulation. âThereâs no other chance of a clear resolution until that happens.â
Social media platforms increasingly have drawn fire from critics who say they silence conservative voices on one hand, and donât do enough to police misinformation and hate speech on the other. A new California law requiring social medial platforms to disclose their content moderation policies is expected to spur a similar constitutional challenge.
âGreat Importanceâ
The Supreme Court will review the Eleventh Circuit decision if at least four of its nine justices want to do so. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch have already signaled interest.
The justices last May 31 vacated a Fifth Circuit stay of a lower courtâs preliminary injunction against the Texas law. Alito, in a dissent that Thomas and Gorsuch joined, said the case concerned âissues of great importance that will plainly merit this Courtâs review.â
The conflict between the appeals courts âcenters not on some fact-bound disagreement about how scrutiny plays out, but on whether the platforms are speaking at all, whether the platformsâ conduct is inherently expressive, whether the platforms can be treated as common carriers, and whether States have a substantial interest in regulating the platforms,â Florida Attorney General Ashley Moody (R) said in the stateâs petition for review. âThis Court should settle these disputes.â
The Texas and Florida laws raise important questions about social media companiesâ editorial judgment, about when governments can override that judgment, and about âhow courts should evaluate laws that burden that judgment in the name of transparency, fairness, or privacy,â Jameel Jaffer, executive director at the Knight First Amendment Institute, said in a statement.
âIf the Supreme Court hears this case, its answers to these questions will define free speech online for a generation,â he said.
Split Decisions
On Sept. 16, the Fifth Circuit reversed a district courtâs ruling blocking the Texas law, which also would allow Texas residents to sue platforms if posts are removed by claiming that their content is being censored.
That ruling follows one from the Eleventh Circuit in May that said it was unconstitutional for Florida to stop social media platforms from banning politicians. However, the court lifted a preliminary injunction against the lawâs disclosure provisions regarding publishing a platformâs standards, changes to a platformâs rules, view counts, free advertising for candidates, or a userâs access to their data after receiving notice of removal from a platform.
The Eleventh Circuit âdealt a mortal blow to the power of governments, state and federal, to protect their citizensâ access to information in the modern public square,â Moody said in Floridaâs filing.
Tech companies, already concerned about government attempts to regulate their platforms, now have to worry about the circuit split the Fifth Circuit has created for the Supreme Court to consider, said Nina Brown, an associate professor at Syracuse University.
âIf Iâm an in-house counsel, Iâm now worried that the Supreme Court is going to get it wrong, that the Supreme Court is going to rule in some way thatâs very inconsistent with the way that weâve understood the First Amendment,â Brown said.
Both sides favor a Supreme Court review.
âWe agree with Florida that the U.S. Supreme Court should hear this case, and weâre confident that the First Amendment rights of websites will be upheld,â Carl Szabo, vice president and general counsel of NetChoice, which challenged both statesâ laws, said in a statement. âWe have the Constitution and over a century of precedent on our side.â
âCulture Warâ
Tech groups challenged the state laws that Republican lawmakers, including Florida Gov. Ron DeSantis and Texas Gov. Greg Abbott, have championed as a means of protecting conservative speech.
âUnquestionably, the laws are part of a broader culture war taking place in our country, and the Supreme Court canât ignore that culture war,â Goldman said. âThey might address it in ways that donât make anyone happyâthat seems most likelyâbut the fact that the Supreme Court has taken so many culture-war cases to date reinforces that thatâs just part of their docket.â
The case is Moody v. NetChoice LLC, U.S., No. 22A131