Florida Asks Supreme Court If It's OK To Ban Content Moderation It Doesn't Like

The State of Florida has asked the US Supreme Court to affirm that its social media law SB 7072, which bars online platforms from removing speech they don't want, meets constitutional free speech guarantees.

SB 7072, signed into law on May 24, 2021, prevents internet platforms from booting off political candidates, restricts state purchases of internet services if the company has been so much as accused (not necessarily found guilty) of violating an antitrust law by a state official, and disallows various forms of content moderation.

Adopted amid conservative pique about the deplatforming of a former US President and the removal of political chum, the law was challenged by tech group plaintiffs NetChoice and CCIA on May 27, 2021. The court hearing the case granted a preliminary injunction, freezing the law, on June 4 and a permanent injunction on June 30, 2021.

The State of Florida fared no better in its appeal: in May, 2022, the US Eleventh Circuit Court of Appeals partially upheld the injunction blocking the law.

"When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction breaches of their community standards, they engage in First-Amendment-protected activity," the appeals court said in its decision.

Defenders of the law hope they can get a different result from the Supreme Court, which is not as far-fetched as it may seem given that the US Fifth Circuit Court of Appeals recently lifted an injunction blocking a similar Texas content-moderation law, HB 20.

While it was the US Supreme Court that temporarily prevented the Fifth Circuit from letting HB 20 be enforced, its willingness to affirm that companies have a say in what's said on their platforms isn't a given. The top court has a decidedly conservative tilt and justices who have signaled an interest in redefining online platforms as common carriers.

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Florida Attorney General Ashley Moody filed a Writ of Certiorari [PDF] requesting that the Supreme Court review "whether the First Amendment prohibits a state from requiring that social-media companies host third-party communications, and from regulating the time, place, and manner in which they do so."

The Supreme Court is also asked to consider "whether the First Amendment prohibits a State from requiring social-media companies to notify and provide an explanation to their users when they censor the user’s speech."

Given the split between the Eleventh and Fifth Circuits, the Supreme Court is almost certain to accept the case to resolve the disagreement.

The tech industry groups challenging the law, NetChoice and CCIA, have welcomed Florida's petition and have expressed optimism prevailing.

NetChoice in a statement described SB 7072 as "government-compelled speech" that violates the First Amendment.

"We agree with Florida that the US Supreme Court should hear this case, and we're confident that the First Amendment rights of websites will be upheld,” said Carl Szabo, NetChoice VP and General Counsel.

"With state legislatures considering a greater role for governments in online speech, the question of whether a government can compel social media services to disseminate content violating their policies is destined for the Supreme Court," said CCIA President Matt Schruers. ®