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'Irreconcilable Divide'

Florida Seeks SCOTUS Review of Social Media Law

Florida asked the U.S. Supreme Court to reverse an 11th U.S. Circuit Court of Appeals decision that a state law’s social moderation limits are likely unconstitutional. The state filed a petition for certiorari Wednesday. Tech associations that challenged the Florida law supported SCOTUS review. Since the 5th Circuit upheld a Texas social media law last week, legal observers expect the Supreme Court to hear a case on the constitutionality of state social media laws to resolve the circuit split (see 2209200008).

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Florida’s cert petition “raises ‘issues of great importance that’ several members of this Court have concluded ‘plainly merit this Court’s review,’” said the state, citing the Supreme Court’s May 31 ruling on an emergency appeal in the Texas case. An “irreconcilable divide” between the 5th and 11th circuits warrants review, Florida said.

The request for SCOTUS review isn’t a surprise. Florida and challengers NetChoice and the Computer and Communications Industry Association (CCIA) told the 11th Circuit in June the tech groups would support Florida seeking Supreme Court review (see 2206240052). The 11th Circuit in May kept a lower court’s preliminary injunction on the Florida law’s content-moderation rules and one disclosure rule (see 2205230049).

Although we oppose legislation like Florida’s social media law, which threatens the First Amendment and democratic principles, CCIA agrees that the Supreme Court should resolve issues in this case,” said CCIA President Matt Schruers. “With state legislatures considering a greater role for governments in online speech, the question of whether a government can compel social media services to disseminate content violating their policies is destined for the Supreme Court.” NetChoice agrees the Supreme Court “should hear this case, and we’re confident that First Amendment rights will be upheld,” said the association’s spokesperson.

The Supreme Court’s First Amendment jurisprudence plainly allows legislatures like Florida’s to enact laws that address Big Tech’s unchecked censorship of other peoples’ political and religious speech," said FCC Commissioner Brendan Carr. "If the Supreme Court takes up these types of cases, I look forward to it applying those decisions here."

The 11th Circuit believes “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,” Florida said in its cert petition. “That ruling strips States of their historic power to protect their citizens’ access to information, implicating questions of nationwide importance.”

The 11th and 5th Circuits differed on whether platforms are speaking when they moderate users, whether platforms make editorial judgments and whether moderation decisions are "inherently expressive,” Florida said. Also, the 11th Circuit saw no legitimate or substantial state interest for regulating the platforms, whereas the 5th Circuit saw an important purpose, it said.

"When social media companies abuse their market dominance to silence speech, they distort the marketplace of ideas,” said Florida. “The question whether the First Amendment essentially disables the States -- and presumably the federal government too -- from meaningfully addressing those distortions should be answered by this Court, and it should be answered now.”