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Florida asks Supreme Court to consider controversial social media law

Supreme Court
Peter Afriyie
The Supreme Court is seen on Thursday, September 8, 2022.

The state of Florida filed a petition to the Supreme Court on Wednesday to hear a case against its embattled law regulating how social media platforms moderate content, according to a copy of the document obtained by The Hill.

Florida asked the high court to weigh in after a court of appeals in May blocked major provisions of the law, ruling in favor of tech industry groups that filed a case against it. The groups argued that the law infringes on First Amendment rights and could lead to more dangerous content and hate speech online. 

The brief asks the court to consider whether the First Amendment prohibits a state from requiring that social media companies host third-party communications, and from requiring the companies notify users when they “censor the user’s speech.”

Florida’s law seeks to prohibit tech companies from banning users or moderating content based on political views. It was passed after mounting accusations from members of the GOP that tech platforms are censoring content based on anti-conservative biases, an allegation that became more common following Twitter and Facebook’s suspensions of former President Trump’s accounts. 

A Texas law similar to the one passed in Florida notched a major win in court last week when the 5th Circuit Court of Appeals upheld the measure. The law restricts social media companies from removing users or violative content. The court’s decision lifted a previous injunction by the Supreme Court, allowing the measure to take effect.

The brief filed by Florida Attorney General Ashley Moody (R) references the 5th Circuit’s decision last week to uphold the Texas law. The decision by the 11th Circuit to block the Florida law “squarely conflicts” with the ruling for Texas, she wrote.

The circuit courts “fundamentally disagreed about the First Amendment principles applicable to social-media censorship,” the brief states. 

“That disagreement centers not on some fact-bound disagreement about how scrutiny plays out, but on whether the platforms are speaking at all, whether the platforms’ conduct is inherently expressive, whether the platforms can be treated as common careers, and whether the States have a substantial interest in regulating the platforms. This Court should settle these disputes,” it continues.

It is widely anticipated that the Supreme Court will hear a case on either the Florida or Texas law, weighing in on the conflicting rulings from the circuit courts.

Matt Schruers, president of the Computers and Communications Industry Association, which is suing Florida along with NetChoice, said he agrees that the Supreme Court should hear the case. 

“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,” Schruers said in a statement.

The outcome of a potential Supreme Court decision on the case will impact more than just the Sunshine State. 

States across the country are looking at conflicting content moderation regulation, and a decision from the Supreme Court could impact how those are shaped. 

Democrats are approaching the issue from a different angle, although their efforts are still triggering pushback from the tech industry. Democrats have widely accused tech platforms of not taking a tough enough stance on hate speech and disinformation online. 

A California bill signed into law last week aims to get at the heart of the issue through transparency measures, but tech groups have signaled they may sue over that bill, too.

Updated 4:56 p.m.

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