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Tech industry takes aim at Florida law restricting social media companies

Jenny Kane

Pointing to a “compendium of First Amendment problems,” industry groups on Monday urged the U.S. Supreme Court to reject a 2021 Florida law that placed restrictions on major social-media companies such as Facebook and Twitter.

Attorneys for the industry groups NetChoice and the Computer & Communications Industry Association wrote in court documents that the law “imposes unprecedented restrictions on the rights of private internet companies to exercise editorial judgment over the content on their services” and improperly singles out companies perceived to have a liberal bias.

“Responding to an alleged conspiracy by ‘big tech oligarchs in Silicon Valley’ to silence ‘conservative’ content, SB 7072 (the law) singles out a select group of private companies and saddles them — and only them — with a slew of content-based and discriminatory requirements,” a brief filed by the industry groups said. “The law openly abridges the targeted companies’ First Amendment right to exercise editorial judgment over what content to disseminate on their websites via requirements that are speaker-based, content-based and viewpoint-discriminatory. Those mandates are designed to work hand-in-glove with burdensome compelled disclosure obligations.”

The groups challenged the law last year in federal court, and 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.”

The Atlanta-based 11th U.S. Circuit Court of Appeals in May upheld much of the preliminary injunction, though it said parts of the law could take effect. The 11th Circuit ruling spurred Florida last month to file a petition asking the Supreme Court to take up the case.

Attorneys for the industry groups, including former U.S. Solicitor General Paul Clement, agreed in the documents filed Monday that the Supreme Court should hear the case. But they said justices also should consider parts of the law that the 11th Circuit did not block.

“While the Eleventh Circuit correctly condemned the core of SB 7072 as incompatible with the First Amendment, it nonetheless allowed certain burdensome disclosure requirements to go into effect,” they wrote in what is known as a cross-petition. “That was error.”

The law, approved by the Republican-controlled Legislature and Gov. Ron DeSantis, targeted large companies such as Facebook and Twitter over decisions to remove politicians and other users from the social-media platforms. 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.

The law, in part, would prevent the 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.

In the petition filed last month at the Supreme Court, the state’s lawyers wrote that the 11th Circuit’s 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,” said the petition, filed by lawyers from Attorney General Ashley Moody’s office and the Washington firm of Cooper & Kirk. “That ruling strips states of their historic power to protect their citizens’ access to information, implicating questions of nationwide importance.”

While it kept in place most of Hinkle’s preliminary injunction, the 11th Circuit tossed out part of the injunction that blocked provisions requiring social-media platforms to publish standards for determining how they censor, deplatform and “shadow ban” users. The panel also lifted the injunction on a provision prohibiting companies from changing their standards more than once every 30 days.

But in the cross-petition Monday, attorneys for the industry groups wrote that such “disclosure” requirements are closely tied to other parts of the law that the 11th Circuit blocked.

“Those disclosure provisions are designed to work hand-in-glove with the provisions that directly countermand these disfavored companies’ editorial discretion and force them to disseminate offensive and inappropriate speech with which they disagree,” the document said. “The disclosure provisions are infected with the same viewpoint and speaker-based discrimination that permeates the law. And the disclosure provisions are unconstitutional in their own right, as they impose onerous burdens that promote no legitimate, let alone compelling, state interest.”

The document described the case as “exceptionally important.” While the 11th Circuit blocked much of the Florida law, the 5th U.S. Circuit Court of Appeals has ruled in favor of a similar Texas law, creating a legal conflict and uncertainty.

As another measure of the profile of the case, former President Donald Trump and 16 states filed friend-of-the-court briefs last week supporting Florida. Meanwhile, groups ranging from the conservative Center for Constitutional Jurisprudence to the Knight First Amendment Institute at Columbia University have also weighed in.