Citing a “compendium of First Amendment problems,” industry groups are asking the US Supreme Court to reject a 2021 Florida law that imposed restrictions on big social media companies like Facebook and Twitter.
Lawyers for industry groups NetChoice and the Computer & Communications Industry Association wrote in court documents that the law “limits the right of private Internet companies to unprecedented limitations on editorial judgment of the content of their services” and unduly singles out companies with a liberal bias.
“In response to an alleged conspiracy by ‘Big Silicon Valley Tech Oligarchs’ to silence ‘conservative’ content, SB 7072 (the law) selects and saddles a select group of private companies – and only them a lot of content. based and discriminatory requirements,” reads a brief submitted by the industry groups. “The law openly curtails affected companies’ First Amendment rights to make editorial decisions about what content to distribute on their websites through requirements that are speaker-based, content-based and discriminatory. These mandates are designed to go hand-in-hand with onerous disclosure requirements.”
The groups challenged the law in federal court last year, and Tallahassee-based US District Judge Robert Hinkle issued an injunction blocking the measure. Hinkle described the law as “riddled with imprecision and ambiguity”.
The Atlanta-based 11th US Circuit Court of Appeals upheld much of the injunction in May, although it said parts of the law could go into effect. The 11th Circuit Court ruling prompted Florida last month to file a petition asking the Supreme Court to take up the case.
Lawyers for the industry groups, including former US Attorney General Paul Clement, agreed in documents filed Monday that the Supreme Court should hear the case. However, they said judges should also consider parts of the law that the 11th Circuit has not blocked.
“While the Eleventh Circuit rightly condemned the core of SB 7072 as inconsistent with the First Amendment, it nevertheless allowed certain onerous disclosure requirements to go into effect,” they wrote in a so-called counter-petition. “That was a mistake.”
The bill, approved by Republican-controlled Legislature and Gov. Ron DeSantis, targeted big companies like Facebook and Twitter for decisions to remove politicians and other users from social media platforms. DeSantis made the issue a priority after Twitter and Facebook blocked former President Donald Trump from their platforms after Trump supporters stormed the US Capitol on Jan. 6, 2021.
The law would partially prevent platforms from banning political candidates from their websites and require companies to publish — and consistently apply — standards on issues like banning users or blocking their content. Businesses could face penalties for violating legal restrictions. For example, companies that remove political candidates from platforms could face fines of $250,000 per day for statewide candidates and $25,000 per day for other candidates.
In the petition, filed in the Supreme Court last month, state attorneys wrote that the 11th district’s decision “dealed a fatal blow to the power of state and federal governments to restrict their citizens’ access to information on the state.” to protect modern public space”.
“According to the Eleventh Circle’s reasoning, social media giants have First Amendment rights to ban any person from the modern town square for any reason, even if they are not following their own rules or are otherwise acting in bad faith,” the petition said, filed by attorneys from the office of Attorney General Ashley Moody and Washington firm Cooper & Kirk. “This ruling robs states of their historical power to protect their citizens’ access to information, raising issues of national concern.”
While it retained the bulk of Hinkle’s injunction, the 11th Circuit Court threw out a portion of the injunction that blocked provisions that required social media platforms to post standards to determine how they censor, remove from platforms, and users Issue “shadow bans”. The panel also lifted an injunction on a provision that prohibits companies from changing their standards more than once every 30 days.
But in Monday’s counter-petition, lawyers for the industry groups wrote that such “disclosure” requirements are closely linked to other parts of the law that the 11th Circuit has blocked.
“These disclosure provisions are intended to work hand-in-hand with provisions that directly contradict the editorial discretion of these disadvantaged companies, forcing them to post offensive and inappropriate language that they disagree with,” the document reads. “The disclosure regulations are infected with the same perspective and speaker-based discrimination that permeates the law. And the disclosure requirements are inherently unconstitutional because they impose onerous burdens that do not further a legitimate, let alone overriding, government interest.”
The document described the case as “extremely important”. While the 11th Circuit blocked much of the Florida statute, the US 5th Circuit ruled in favor of a similar Texas statute, creating legal conflict and uncertainty.
In another measure of the case’s profile, former President Donald Trump and 16 states filed Friend of the Court briefs last week to support Florida. Meanwhile, groups from the conservative Center for Constitutional Jurisprudence to the Knight First Amendment Institute at Columbia University have also gotten involved.
Jim Saunders reports for the Florida News Service.