With the U.S. Supreme Court poised to hear arguments next month, Florida is disputing that a 2021 state law placing restrictions on large social-media platforms violates First Amendment rights.
In a 50-page brief filed last week, attorneys for the state contended that platforms such as Facebook and X should be considered like telephone companies and said the First Amendment does not give platforms “constitutional license to selectively silence the speech of those they may host.”
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.
“In hosting billions of speakers and petabytes of content, the platforms are engaged in business activity — conduct — that may be regulated in the public interest,” the state’s brief said. “The First Amendment does not afford those who host third-party speech a right to silence the hosted speakers or to treat them arbitrarily. The telephone company, internet service provider, and delivery company can all be prevented from squelching or discriminating against the speech they carry. And so can the platforms.”
The state wants the Supreme Court to overturn a decision by the 11th U.S. Circuit Court of Appeals that blocked key parts of the law, which Gov. Ron DeSantis and the Republican-controlled Legislature passed after Facebook and Twitter, now known as X, blocked former President Donald Trump from their platforms after Trump supporters stormed the U.S. Capitol on Jan. 6, 2021.
"The telephone company, internet service provider, and delivery company can all be prevented from squelching or discriminating against the speech they carry. And so can the platforms."Brief by attorneys for Florida
The tech-industry groups NetChoice and the Computer & Communications Industry Association challenged the constitutionality of the law. Tallahassee-based U.S. District Judge Robert Hinkle issued a preliminary injunction blocking the measure, and most of Hinkle’s ruling was upheld by the appeals court. Hinkle described the law as “riddled with imprecision and ambiguity.”
In a November brief at the Supreme Court, lawyers for the industry groups contended the law 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 groups’ 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 will hear arguments Feb. 26 in the case and a challenge to a similar Texas law. In contrast to the 11th Circuit, the 5th U.S. Circuit Court of Appeals supported restrictions on social-media platforms in the Texas law.
The Florida law (SB 7072) applies only to certain large platforms. In the brief last week, the state’s attorneys likened the platforms to what are known as “common carriers.” In addition to telephone companies, it cited telegraph companies from the 1800s.
“SB 7072 does little more than require the platforms to adhere to their general business practice of holding themselves open to all comers and content, which is how common-carrier regulation has functioned for centuries,” the brief said. “The law interferes with no message merely by holding the platforms to their representations to consumers about what their censorship rules require.”
The state’s attorney also wrote that the “threshold question is whether Florida’s law targets conduct or expression. And the government regulates conduct when it prevents a private entity that generally opens its doors to all speakers and speech from arbitrarily censoring those speakers. That principle is rooted in precedent, purpose, and history.”
But in the November brief, lawyers for the industry groups disputed such arguments, saying there is no “common law tradition of imposing common-carrier-like regulations on private parties that disseminate curated collections of speech.”
“In trying to characterize SB 7072 as common-carrier regulation, Florida cannot mean that the websites targeted for regulation already operate as common carriers, and thus are subject to some greater degree of regulation,” the groups’ brief said. “Indeed, the genesis of SB 7072 was that Florida lawmakers did not like how the targeted companies were exercising discretion over which content to disseminate and how. Thus, Florida does not seek to regulate the targeted websites because they already are common carriers; it seeks to convert them into common carriers that must disseminate the messages of all comers (or at least the state’s hand-picked preferred speakers). But that is just another way to describe the state’s impermissible effort to force a different and more indiscriminate editorial policy onto companies engaged in the dissemination of speech.”
