The tech industry took aim at Florida’s Social Media Act

Citing a “compendium of First Amendment problems,” industry groups urged the U.S. Supreme Court to strike down a 2021 Florida law that would impose restrictions on large social media companies like Facebook and Twitter.

Attorneys for industry groups NetChoice and the Computer and Communications Industry Association wrote in court filings that the law “imposes unprecedented restrictions on the rights of private Internet companies to exercise editorial discretion over the content of their services” and improperly singles out companies believed to have a liberal bias.

“In response to an alleged conspiracy by ‘major Silicon Valley tech oligarchs’ to silence ‘conservative’ content, SB 7072 (the law) singles out a select group of private companies and burdens them – and them alone – with a host of content-based and discriminatory requirements ,” said a brief filed by the industry groups. “The law openly limits the First Amendment right of targeted companies to exercise editorial discretion over what content to distribute on their websites through requirements that are speaker-based, content-based, and viewpoint-discriminatory.” These mandates are designed to work hand in hand with burdensome mandatory disclosure obligations.”

The groups challenged the law last year in federal court, and Tallahassee-based U.S. District Judge Robert Hinkle issued a preliminary injunction blocking the measure. Hinkle described the law as “riddled with inaccuracies and ambiguities.”

The Atlanta-based 11th U.S. Circuit Court of Appeals in May upheld much of the preliminary injunction, although it said parts of the law could go into effect. The 11th Circuit ruling prompted Florida to file a petition last month asking the Supreme Court to take up the case.

Lawyers for the industry groups, including former U.S. Solicitor General Paul Clement, agreed in documents filed Monday that the Supreme Court should hear the case. But they said the justices must also consider parts of the law that the 11th Circuit has not blocked.

“Although the Eleventh Circuit correctly condemned the substance of SB 7072 as inconsistent with the First Amendment, it nevertheless allowed some onerous disclosure requirements to take effect,” they wrote in what is known as a counter-petition. “This was a mistake.”

The law, approved by the Republican-controlled Legislature and Gov. Ron DeSantis, targeted major companies like Facebook and Twitter for decisions to remove politicians and other users from the social media platforms. DeSantis made the issue a priority after Twitter and Facebook blocked former President Donald Trump from their platforms after Trump supporters stormed the US Capitol on January 6, 2021.

The law, in part, would prevent platforms from banning political candidates from their sites and require companies to publish — and consistently enforce — standards on issues such as banning users or blocking their content. Companies can be fined for breaking the law’s restrictions. For example, companies that remove political candidates from platforms can be fined $250,000 per day for statewide candidates and $25,000 per day for other candidates.

In the petition filed last month with the Supreme Court, lawyers for the state wrote that the 11th Circuit’s ruling “deals a death blow to the power of governments, state and federal, to protect their citizens’ access to information in the modern public square.”

“According to the Eleventh Circuit’s reasoning, social media giants have a First Amendment right to kick any person off the modern town square for any reason, even when they don’t follow their own rules or otherwise act in bad faith,” said a petition filed by attorneys from Attorney General Ashley Moody’s office and the Washington firm Cooper & Kirk. “This ruling strips states of their historic power to protect their citizens’ access to information by interfering with matters of national importance.”

While upholding most of Hinkle’s preliminary injunction, the 11th Circuit struck down a portion of the injunction that blocked provisions requiring social media platforms to publish standards for determining how they censor, deplatform and “shadow ban” users . The panel also struck down a provision barring companies from changing their standards more than once every 30 days.

But in Monday’s counter-petition, attorneys for the industry groups wrote that such “disclosure” requirements are closely related to other parts of the law that the 11th Circuit has blocked.

“These disclosure provisions are designed to work hand-in-glove with provisions that directly counter the editorial judgment of these adverse companies and compel them to disseminate offensive and inappropriate speech with which they disagree,” the document said. “The disclosure provisions are infected with the same viewpoint and speaker-based discrimination that permeates the law. And disclosure provisions are unconstitutional per se because they impose onerous burdens that do not further a legitimate, let alone compelling, state interest.

The document describes the case as “extremely important”. While the 11th Circuit blocked much of Florida’s law, the 5th U.S. Circuit Court of Appeals ruled in favor of a similar law in Texas, creating legal conflict and uncertainty.

In another measure of the case’s profile, former President Donald Trump and 16 states filed amity ballots with the court last week in support of Florida. Meanwhile, groups ranging from the conservative Center for Constitutional Jurisprudence to Columbia University’s Knight First Amendment Institute also got involved.

Jim Saunders reports for the News Service of Florida.

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