Florida law aimed at social media censorship reaches Supreme Court

Florida has asked the U.S. Supreme Court to let it enforce a law meant to curb social media censorship.

Senate Bill 7072 wades into the content moderation policies of companies such as Twitter and Facebook. The law prohibits the platforms from banning or hiding the posts of candidates for state office, among other things. It opens up social media companies to lawsuits when users or the state determine that they policed content in a way that violated the law.

Pushed by Republican Gov. Ron DeSantis, the bill was intended to “ensure that ‘We the People’—real Floridians across the Sunshine State—are guaranteed protection against the Silicon Valley elites” and to check the “Big Tech censors” that “discriminate in favor of the dominant Silicon Valley ideology,” according to a statement accompanying the bill’s signing in May 2021. Tech companies immediately challenged the law, and a federal district court put it on hold.

In May of this year, a panel of the 11th U.S. Circuit Court of Appeals sided with the tech giants, concluding the First Amendment applied to companies no matter their size. “Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it,” wrote Circuit Judge Kevin Newsom for the unanimous, three-judge panel.

Florida’s attorneys want the U.S. Supreme Court to weigh in on whether the platforms are engaged in their own speech at all or are merely a conduit for speech. They argue that, given the companies’ pervasive reach and near-monopoly on digital speech, they should be treated as common carriers like railroads and airlines or places of public accommodation, subject to increased regulation.

Supreme Court Justice Clarence Thomas singled out the common carrier exception in an April 2021 concurring opinion. He decried the “unprecedented, … concentrated control of so much speech in the hands of a few private parties,” adding, “there is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.”

Other conservative justices are less certain. In late May, Justice Samuel Alito wrote that he had not “formed a definitive view on the novel legal questions” that a similar law in Texas raised.

Florida’s request comes on the heels of a ruling on the Texas law by the New Orleans-based 5th U.S. Circuit Court of Appeals. In contrast to the 11th Circuit, a 2-1 panel of 5th Circuit judges upheld the Texas law regulating social media companies. “We reject the platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee,” wrote Circuit Judge Andrew Oldham, a Trump appointee. “The platforms are not newspapers. Their censorship is not speech.”

Opinions on the subject do not fall along neat partisan or ideological divides. All three judges on the 11th Circuit opinion blocking the Florida law are Republican appointees, as are both judges in the majority opinion upholding the Texas law. Criticism of Big Tech has also come from both sides of the aisle, with Republicans advocating the platforms take a “hands off” approach to user-posted speech and Democrats charging the platforms to do more to ferret out “disinformation” and “hate speech.”

Congress has made little progress on how to corral the internet behemoths. Proposals to reform Section 230 of the Communications Decency Act to qualify the immunity it affords internet platforms have languished in committees, and legislators and legal commentators remain conflicted over what to do.

States are stepping into that vacuum. Thirty-four state legislatures have introduced bills, yet so far only Texas, Florida, and New York have enacted legislation, according to Politico’s review of data from the National Conference of State Legislatures in July. 

Even legal commentators disagree on the right approach. Some contend that the tech companies, like other businesses, have the absolute right to control what appears on their platforms. One who doesn’t is Adam Candeub, a law professor at Michigan State University: “In countless Section 230 cases, the social media firms argue that they should have no liability for their users’ speech because it is speech, as Section 230 states, of ‘another. Now, the platforms claim users’ speech as their own for First Amendment purposes. But, they cannot have their Section 230 free lunch—and eat it too.”