The Supreme Court is set to hear arguments involving Florida's social media law. [Photo by Adam Szuscik]
The U.S. Supreme Court will take up a First Amendment fight about a 2021 Florida law that restricted major social media companies.
The Supreme Court said Sept. 29 it will hear cases involving the Florida law and a similar measure in Texas. Both sides in the Florida case, along with the U.S. solicitor general, had urged the justices to take up the issues.
The industry groups NetChoice and the Computer & Communications Industry Association challenged the constitutionality of the Florida law, which targets companies such as Facebook and X, formerly Twitter. Gov. Ron DeSantis made a priority of the issue after Twitter and Facebook blocked former President Donald Trump from their platforms after Trump supporters stormed the U.S. Capitol on Jan. 6, 2021.
U.S. District Judge Robert Hinkle issued a preliminary injunction against the measure, describing it as “riddled with imprecision and ambiguity.” The 11th U.S. Circuit Court of Appeals last year upheld much of the preliminary injunction, though it said parts of the law could take effect.
“We are pleased the Supreme Court agreed to hear our landmark cases,” Chris Marchese, NetChoice’s litigation director, said in a prepared statement Friday. “Online services have a well-established First Amendment right to host, curate and share content as they see fit. The internet is a vital platform for free expression, and it must remain free from government censorship. We are confident the court will agree.”
But in a filing last year with the Supreme Court, Florida’s attorneys said the 11th Circuit decision “dealt a mortal blow to the power of governments, state and federal, to protect their citizens’ access to information in the modern public square.”
“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 filing reads. “That ruling strips states of their historic power to protect their citizens’ access to information, implicating questions of nationwide importance.”
The Supreme Court will review two parts of the Florida law that the 11th Circuit blocked.
One of those parts would restrict content moderation. Social media companies would be prevented from banning political candidates from their sites and would have to publish and consistently apply standards about issues.
In contrast to the 11th Circuit, the 5th U.S. Circuit Court of Appeals upheld similar restrictions in the Texas law.
“When a social-media platform selects, edits, and arranges third-party speech for presentation to the public, it engages in activity protected by the First Amendment,” Justice Department lawyers wrote in a brief. “That activity, and the platforms’ business practices more generally, are not immune from regulation. But here, the states have not articulated interests that justify the burdens imposed by the content-moderation restrictions under any potentially applicable form of First Amendment scrutiny.”
The Justice Department also urged the Supreme Court to take up another part of the Florida law that “requires a platform to provide an individualized explanation to a user if it removes or alters her posts.” As with content moderation, the 5th Circuit disagreed with the 11th Circuit in upholding a similar requirement in the Texas law.
In saying it will focus on the two issues, the Supreme Court does not appear likely to go as far as the tech groups wanted, which was to block the entire Florida law. It is not clear when the Supreme Court will hear arguments.