Florida brings battle over social media regulation to the Supreme Court

Florida’s attorney general on Wednesday asked the Supreme Court to decide whether states have the right to regulate how social media companies moderate content on their services, a move that sends one of the most controversial debates of the internet age to the country’s highest court.

In its petition, the state asks the court to determine whether the First Amendment prohibits a state from requiring that platforms host certain communications and also whether the states can require companies to provide an explanation to users when they remove their posts. The petition sets up the most serious test to date of assertions that Silicon Valley companies are unlawfully censoring conservative viewpoints.

Read Florida’s filing for a Supreme Court hearing

The decision could have wide-ranging effects on the future of democracy and elections, as tech companies play an increasingly significant role in disseminating news and information about politics. Critics of the state social media laws and tech industry representatives also warn that if the Florida law were to take effect, it could lead to a torrent of hate speech, misinformation and other violent content that some major social media companies’ policies currently prohibit.

Appeals court upholds Texas law regulating social media moderation

The petition is a response to a decision by the U.S. Court of Appeals for the 11th Circuit earlier this year that major provisions of a Florida social media law violated the Constitution’s First Amendment. The law would bar companies from banning politicians from their services.

The Florida attorney general incorporated in the petition a recent conservative victory in the U.S. Court of Appeals for the 5th Circuit, which upheld a Texas law that bars companies from removing posts based on a person’s political ideology. The Florida petition says the circuit courts’ decisions are in conflict, and the Supreme Court must resolve those differences. Florida attorney general Ashley Moody did not immediately respond to a request for comment.

The legal battle over the Florida law began in May 2021, when Netchoice and the Computer & Communications Industry Association, two industry groups representing major social media companies, filed a lawsuit to block the law from taking effect. The tech companies scored major victories when a federal judge in June of last year blocked the law from taking effect and then when the 11th Circuit upheld much of that ruling. The tech companies say they believe they will see a similar outcome in the Supreme Court.

“We agree with Florida that the U.S. Supreme Court should hear this case, and we’re confident that First Amendment rights will be upheld,” Netchoice vice president and general counsel Carl Szabo said in a statement. “We have the Constitution and 200 years of precedent on our side.”

Any court decision would have consequences that stretch far beyond Florida, as more than 100 bills related to social media content moderation have been introduced in state legislatures across the country, according to a July analysis from CCIA. Many of the state legislatures have already recessed until 2023, and they are closely watching how the litigation over the Florida and Texas laws resolves.

Though the first social media content regulation laws were passed in conservative states, liberal states are now following with legislation to force more transparency on how the companies respond to threatening and hate speech. Any decision on states’ First Amendment power to regulate how companies police their platforms could have implications for those bills as well.

This is a developing story. Check back for updates.

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