By Jim Saunders ©2023 The News Service of Florida
TALLAHASSEE — Arguing the law is “entirely incompatible with the First Amendment,” two industry groups Thursday urged the U.S. Supreme Court to uphold a ruling that blocked key parts of a 2021 Florida law placing restrictions on large social media companies.
Attorneys for the groups NetChoice and the Computer & Communications Industry Association filed a 52-page brief that said the law, approved by Gov. Ron DeSantis and the Republican-controlled Legislature, was designed to punish social-media platforms that were perceived as having a liberal viewpoint.
“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 brief said. “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. When it comes to disseminating speech, decisions about what messages to include and exclude are for private parties — not the government — to make.”
The Supreme Court said in September that it will take up the case and a challenge to a similar Texas law. Florida’s attorneys face a Jan. 16 deadline for filing a brief. The Supreme Court has not announced when it will hold arguments.
In a petition last year asking the Supreme Court to hear the case, Florida’s attorneys said justices should overturn a ruling by the 11th U.S. Circuit Court of Appeals that kept in place most of a preliminary injunction against the law.
DeSantis made a priority of passing the law after Twitter, now known as X, and Facebook blocked former President Donald Trump from their platforms after Trump supporters stormed the U.S. Capitol on Jan. 6, 2021.
The law, in part, would prevent large platforms from banning political candidates from their sites and require companies to publish — and apply consistently — standards about issues such as banning users or blocking their content. Companies could face penalties for violating restrictions in the law. For example, companies that remove political candidates from platforms could face fines of $250,000 a day for statewide candidates and $25,000 a day for other candidates.
“Under the Eleventh Circuit’s reasoning, social-media behemoths have a First Amendment right to cut any person out of the modern town square, for any reason, even when they do not follow their own rules or otherwise act in bad faith,” the state’s 2022 petition to the Supreme Court said. “That ruling strips states of their historic power to protect their citizens’ access to information, implicating questions of nationwide importance.”
In contrast to the 11th Circuit, the 5th U.S. Circuit Court of Appeals supported similar restrictions in the Texas law.
NetChoice and the Computer & Communications Industry Association challenged the constitutionality of the Florida law in 2021. Tallahassee-based U.S. District Judge Robert Hinkle issued a preliminary injunction blocking the measure. Hinkle described the law as “riddled with imprecision and ambiguity.”
A panel of the Atlanta-based 11th Circuit backed much of the preliminary injunction.
One issue raised in Thursday’s brief by attorneys for the industry groups was that the Florida law (SB 7072) only applies to certain large social media companies. The brief said the law “seeks to punish select private parties for exercising editorial discretion in ways the state disfavors.”
“The state enacted SB 7072 to combat what it perceived to be a concerted effort by ‘big tech oligarchs in Silicon Valley’ to silence ‘conservative’ speech on their websites,” the brief said. “To ensure that the state’s preferred messages reach a broad audience, SB 7072 singles out a handful of large websites and requires them to disseminate a wide range of third-party speech that they do not want to disseminate. The law applies to Facebook and YouTube, but it spares websites with a different perceived ideological bent like Parler and Gab. And it requires covered websites to disseminate virtually all speech by the state’s preferred speakers, no matter how blatantly or repeatedly the speaker violates the website’s terms of use.”
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