CCIA, NetChoice Also Seek Cert on Florida Social Media Law

CCIA and NetChoice petitioned the Supreme Court Monday in docket 22-277 to grant cert in Florida’s challenge of the 11th U.S. Circuit Court of Appeals ruling on the state’s social media moderation law. Florida filed its own cert petition in September, and attorneys general from 16 states and former President Donald Trump filed amicus briefs in support Friday. “Given the proliferation of proposals in other states that also abridge editorial discretion, the best course for all is for this Court to grant review now and establish clear bulwarks against state efforts that are antithetical to the First Amendment,” said the petition from CCIA and Netchoice.

“Florida’s law violates a well-established Constitutional principle that the government cannot dictate what content private entities distribute, and particularly not to ensure that a favored viewpoint is heard,” said CCIA President Matt Schruers in a news release. “We have every reason to believe the Justices will see the threat the Florida law presents to long-standing principles of U.S. democracy and agree to hear this case.”

CCIA and NetChoice signaled in September that they would support SCOTUS taking up the case (see Ref:2209210070), and they have also sought cert for their appeal of the 5th U.S. Circuit Court of Appeals decision upholding Texas’s social media law. The filing could also be an indication that NetChoice and CCIA believe their arguments will fare better if SCOTUS grants cert on the Florida case rather than the Texas one, said Boston College Law School professor Daniel Lyons in an interview. The prevailing wisdom is that NetChoice and CCIA have a strong chance to win before the court, Lyons said, though he conceded that the matter appeared more uncertain after several justices weighed in on an earlier decision restoring an injunction against the Texas social media law earlier this year.

The Florida social media moderation law “abridges the editorial judgments of private social media websites and overrides their decisions about what content to disseminate and how to disseminate it,” said the CCIA and NetChoice petition. The law also draws distinctions based on content and discriminates among viewpoints and speakers, and “cannot survive any level of heightened scrutiny, let alone strict scrutiny,” the filing said. “Countless precedents confirm that government efforts to level the playing field are strictly forbidden under the First Amendment.”

The Florida law has size and revenue requirements “carefully crafted to target ‘Big Tech,’ while exempting smaller companies with a different perceived ideological bent,” said the industry groups. Florida’s arguments that the law regulates the conduct of social media platforms rather than their speech are “a word game,” the filing said. The groups also pushed back on arguments that the social media platforms are common carriers. Tech platforms don’t provide their services on an indiscriminate basis like telephone companies, but “like newspapers and cable networks, they make content- and viewpoint-based decisions about which content to disseminate and how.”

Amicus briefs from numerous states and Trump also called for the court to take up the case. Such briefs can be an important tool for encouraging the court to accept a case, attorneys told us. “We tell our clients seeking cert to get their friends to file amicus briefs if they can,” said Deutsch Hunt attorney Ruthanne Deutsch, who represented the public interest groups before SCOTUS in FCC v. Prometheus. "Having amicus briefs at the petition stage helps show that the interest is greater than just your specific case.” The source of the amicus brief is also seen to carry weight with the high court, an attorney told us. Amicus briefs from legislators, the U.S. Chamber of Commerce and state governments have a record of leading to cert, the attorney said.

“Platforms often shroud decisions to exclude certain users and viewpoints in secrecy, giving no meaningful explanation as to why certain users are excluded while others posting equivalent content are tolerated,” said a brief filed by Trump on Friday. “A review of NetChoice will provide urgent clarity to legislatures across the nation as to how they can ensure their residents have access to the ‘modern public square.’” Trump’s filing is noteworthy because it is “uncommon” for former presidents to file amici in SCOTUS cases and because he owns Truth Social, a competing social media platform, Tech Freedom Internet Policy Counsel Corbin Barthold told us. Tech Freedom has filed in opposition to both the Florida and Texas social media laws.

“This case provides the Court with a chance to provide important guidance regarding what the States can do to discourage or prohibit censorship,” said the joint amicus brief from the state AGs of Ohio, Alabama, Alaska, Arizona, Arkansas, Idaho, Iowa, Kentucky, Mississippi, Missouri, Montana, Nebraska, South Carolina, Tennessee, Texas and Utah. “Public perception is relevant to the issue’s importance,” said the state filing. “If significant percentages of the public want legislation on a particular issue, they are likely to get it. If that legislation is to accomplish anything, legislators must enact laws that comport with the Constitution.” Barthold said he thinks the number of states represented in the joint filing could actually work against the attorneys general. Since the filing indicates the states are looking to pass their own social media laws, the brief could lead to concerns that a decision in the case could lead to a patchwork of state social media laws, he said.

When a respondent is seeking to oppose SCOTUS taking up a case, the usual strategy is to discourage amicus briefs supporting that position, because the briefs could be seen as indications of wide interest in a case, an attorney told us. One amicus brief was filed on the side of NetChoice and CCIA, by George Mason University Law School Associate Dean Alan Morrison. “Laws that decide what must be posted on the Internet do not respect state boundaries, and therefore the State of Florida has effectively decided these major policy and constitutional issues for the entire country,” wrote Morrison.

SCOTUS should “go beyond their usual caution in deciding whether or not to grant the writ,” wrote New Civil Liberties Alliance CEO and Columbia Law School professor Philip Hamburger in an amicus brief supporting neither side. Hamburger said he’s concerned that the case doesn’t contain a record of those censored by tech platforms and hasn’t included discovery on “the government’s role in the censorship. “Having cautiously refrained from hearing concerns about voter fraud in this Court, the justices should not prevent such concerns from being voiced outside the Court,” said the filing.