Florida is asking the United States Supreme Court to review an 11th Circuit Court of Appeals ruling that legislation introduced in the Sunshine State violates the First Amendment.
Florida contends that the law does not infringe the First Amendment as it regulates conduct rather than speech. If SCOTUS ultimately agrees with Florida, many more states will likely enact similar legislation, so the stakes are high.
The case revolves around Florida Senate Bill 7072. Among other things, the bill would severely limit the ability of sites like Facebook and Twitter from moderating content on their sites. The Act provides that social media platforms “may not willfully deplatform” users who are qualified candidates for political office in Florida. Platforms also may not deplatform a “journalistic enterprise based on the content of its publication or broadcast,” with “journalistic enterprise” defined based on, among other things, the number of words or other content the entity publishes and the number of viewers or subscribers it receives. Finally, the Act prohibits censorship and shadow banning of journalistic enterprises based on what they say, and prohibits the use of algorithms to shadow ban material posted by or about candidates during the campaign.
Florida argues that social media platforms, particularly the behemoths like Twitter and Facebook, are modern “public squares.” By adopting this analogy, Florida argues in its petition that the First Amendment permits a statute that effectively restricts closing off the public square to a speaker based on the content of the speech. Thus, a shopping center has been required to allow people to solicit signatures on a petition. The court in that case reasoned that the shopping center was open to the public, the law didn’t favor a particular message and the shopping center could disavow any connection with the petitioners by posting signs. In Florida’s view, that precedent fits social media platforms to a tee.
Florida urges the Supreme Court to disregard precedent that says a law that compels a newspaper to run certain content violates the First Amendment. In its view, those cases stand for the proposition that the government may not interfere with the message a newspaper is trying to convey. In Florida’s view, however, social media platforms have no view – they are the equivalent of a very high tech bulletin board. So requiring the site to post anything any crackpot has to say is in no way a First Amendment violation.
The Florida law is either legislation necessary to reign in the monopolistic social media platforms or a solution in search of a problem. There is some irony in a red state passing legislation that gives the green light to having the government intrude on the operations of private businesses. But changing times apparently change viewpoints. One other oddity in Florida’s petition is that it doesn’t address Section 230 of the info, the federal law empowers providers to prohibit the transmittal of obscene or any otherwise constitutionally unprotected speech. Separate and apart from the First Amendment, there is an argument that the federal law (which is completely contrary to the Florida legislation) would preempt the Florida law. But I suppose Florida will deal with that issue when it needs to.
It will be interesting to see if SCOTUS takes this case and what it will do if it does. Stand by your social media platforms for answers.
Jack Greiner is a partner at the Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.