According to reports, Florida has asked the U.S. Supreme Court for a ruling on whether the First Amendment allows big tech companies to shadow-ban, censor, or de-platform users. It also prevents state governments from regulating social media content moderation policies.
According to the Washington Post, Ashley Moody, Florida Attorney General, asked the court to clarify whether social media companies can be required by states to host certain communications on platforms. Also, companies might have to explain to users what happens to content when it is removed or banned.
This petition opens the door to a high-stakes battle between Silicon Valley tech titans and conservatives who accuse them of censorship.
The Eleventh Circuit Court of Appeals had earlier this year blocked a Florida law that Gov. Ron DeSantis (Republican) placed restrictions on social media content moderation policies. Florida residents had the right to sue Big Tech platforms for failing to disclose their content moderation practices or censoring or banning users in inconsistent ways under the anti-censorship law. It also prohibited platforms from de-platforming or banning news websites “based on its content” and made it illegal for a candidate to be de-platformed.
The Eleventh Circuit ruled that the anti-censorship law violated Section 1 of the First Amendment. They argued that social media companies can make editorial decisions when they enforce content moderation policy and these editorial decisions are protected by free speech.
The Fifth Circuit Court of Appeals affirmed a Texas law similar to it, ruling that corporations don’t have a “freewheeling First Amendment right” to censor people’s opinions. Texas law bars social media companies that have at least 50 million monthly users from removing posts based on “viewpoint” and prohibits them from “censoring” users.
Moody claimed that Eleventh Circuit and Fifth Circuit decisions are in conflict, and requested that the Supreme Court resolve the matter.
NetChoice, a trade group that represents social media companies such as Twitter and Facebook, welcomed Florida’s appeal before the Supreme Court.
“We agree with Florida that this case should be heard by the U.S. Supreme Court, and we are confident that First Amendment rights can be upheld,” Carl Sabo, NetChoice vice president of general counsel, stated to the Washington Post in an interview. “We have the Constitution, 200 years of precedent and we are on our side.”
“There is consensus that the question of whether states can compel online services to disseminate material that is inconsistent with their policies — it is one that should be heard and decided by the Supreme Court,” stated Matt Schruers, president of Computer & Communications Industry Association in a statement to Politico. “While Florida’s social-media law is a threat both to the First Amendment as well as democratic principles, we agree that this case needs to be reviewed.”