U.S. Supreme Court punts on Florida’s social media law, sends it back to appeals court

A lawsuit filed by attorneys general in Missouri and Louisiana alleges the federal government pressured social media companies to target conservative speech across a range of topics, from the efficacy of vaccines to the integrity of the 2020 presidential election (Photo Illustration by Justin Sullivan/Getty Images).Quality Journalism for Critical Times

The U.S. Supreme Court on Monday vacated appeals court decisions involving Florida and Texas laws designed to restrict the power of social media companies to curb content that those platforms consider objectionable, sending Florida’s case back to the U.S. Court of Appeals for the Eleventh Circuit and the Texas case to the Fifth Circuit.

The ruling was unanimous, but the justices were divided 6-3 in their reasoning.   

The Florida case, Moody v. Netchoice, goes back to a 2021, when the Republican-led Florida Legislature passed a law (SB 7072) in the immediate aftermath of Donald Trump being banished from social media platforms after the Jan. 6 attack on the Capitol by some of his supporters.

The law prohibited social media platforms from deplatforming a candidate for political office and allowed the Florida Election Commission to fine a social media platform (defined as a company with annual gross revenues of more than $100 million or more than 100 million monthly active users) $250,000 per day for a candidate for statewide office and $25,000 per day for a candidate for other offices.

It allowed social media users to opt out of a platform’s algorithms and insist they feed them posts in order of the time that they were written, and required social media companies to provide detailed explanations to every user whose content they barred.

After the law was passed, two industry groups, NetChoice and the Computer and Communications Industry Association, sued to block its enforcement. In July 2021, U.S. District Judge Robert Hinkle in Tallahassee issued an injunction against enforcing the law, concluding that it violated the First Amendment and federal law governing the sites. 

Florida Gov. Ron DeSantis and Attorney General Ashley Moody appealed to the Eleventh Circuit, but were rebuked there as well in May 2022, when a three-judge panel unanimously upheld the federal court’s decision, writing that the state was not allowed to force the social media companies to comply with what the state deemed was permissible speech. 

“We hold that it is substantially likely that social-media companies — even the biggest ones — are private actors whose rights the First Amendment protects, that their so-called ‘content-moderation’ decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms’ ability to engage in content moderation unconstitutionally burden that prerogative,” Judge Kevin Newsom wrote for the appellate panel.

The state appealed that decision to the U.S. Supreme Court, which heard the case in February and ruled on Monday.

Remanded

Writing for the majority, Justice Elena Kagan said the court would remand because neither the Eleventh Circuit nor the Fifth Circuit (in the Texas case) conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws regulating large internet platforms. The Fifth Circuit had upheld the Texas law.

Much of her opinion references specifically the Texas social media law but the ruling also applies to Florida’s law.

“Texas has never been shy, and always been consistent, about its interest: The objective is to correct the mix of viewpoints that major platforms present,” Kagan wrote.

“But a State may not interfere with private actors’ speech to advance its own vision of ideological balance. States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. But the way that the First Amendment achieves that goal is by preventing the government from ‘tilt[ing] public debate in a preferred direction,’ … not by licensing the government to stop private actors from speaking as they wish and preferring some views over others. That unadorned interest is not ‘unrelated to the suppression of free expression.’” (Emphasis in the original.)

Reaction

The industry groups celebrated the ruling — but curiously, so did Moody.

“We are encouraged that a majority of the Court has made clear that the government cannot tilt public debate in its favored direction,” said Matt Schruers, president of the Computer and Communications Industry Association.

“There is nothing more Orwellian than government attempting to dictate what speech should be carried, whether it is a newspaper or a social media site. Our Founding Fathers understood the importance of the right to speak or not speak without government interference and made this a cornerstone of our democracy when they ratified the First Amendment. We look forward to continuing our advocacy for the First Amendment as these cases return to lower courts in Florida and Texas.”

“Today’s ruling from the Supreme Court is a victory for First Amendment rights online,” said Chris Marchese, director of the NetChoice Litigation Center, in a statement posted on X.

“As our cases head back to the lower courts of consideration, the Supreme Court agreed with all our First Amendment arguments. Free speech is a cornerstone of our republic. As we prepare to celebrate the 248th anniversary of American independence this week, we are gratified to see the Supreme Court acknowledge the Constitution’s unparalleled protections for free speech, including the world’s most important communications tool, the internet.”

Despite those comments, Florida AG Moody posted on X that “SCOTUS Unanimously Sides with Florida in Social Media Case.”

“We are pleased that SCOTUS agreed with Florida and rejected the lower court’s flawed reasoning — invalidating our social media law. While there are aspects of the decision we disagree with, we look forward to continuing to defend state law.”

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