Cross-Petition Brings All of Fla. Social Media Law Before SCOTUS

Cross-petitioning the Supreme Court with two petitions for certiorari on different issues from Florida’s social media law S.B. 7072, as CCIA and NetChoice did, is the only way to bring compelled disclosure provisions that weren’t ruled unconstitutional by the 11th U.S. Circuit Court of Appeals in front of the justices, said academics and lawyers in interviews.

At least three of the justices previously signaled an interest in the transparency issues that are the focus of the second cert petition in an opinion on an emergency stay of Texas’ social media law, said Eric Goldman, Santa Clara University School of Law professor. The provisions of the law are so intertwined, it would be “really unfortunate” if the court split those matters up, said Goldman.

The tech groups’ initial cert petition was posted in docket 22-277 Oct. 24 (see 2210240066) but a second focused on the disclosure provisions was posted in docket 22-393 Wednesday. The compelled disclosure provisions in the Florida law require social media platforms to provide detailed written notice before removing or banning users and for making changes in the platform’s rules. The disclosure provisions “are infected with the same viewpoint and speaker-based discrimination that permeates the law” and “impose onerous burdens that promote no legitimate, let alone compelling, state interest,” said the petition.

Taking up the cross-petition “will ensure that the court can provide effective relief,” if it rules against the Florida law, CCIA and NetChoice said. “The compelled disclosure provisions reflect the same viewpoint-based and speaker-based distinctions and improper purposes that permeate the law,” said the second cert petition. “Granting the cross-petition thus will ensure that the Court has before it all the relevant provisions that raise serious First Amendment difficulties,” said the groups. Filing the separate cross-petition was the only way to “tack on” the additional provisions that survived the 11th Circuit’s ruling, Goldman said.

The cross-petition also allows the tech groups to target specific sections of the social media law that aren’t a focus of the other cert petition, said Tech Freedom Internet Policy Counsel Corbin Barthold. The cross-petition argues that the law discriminates against certain speakers, singling out only certain platforms. “Its size and revenue requirements are carefully crafted to target ‘Big Tech,’ while exempting smaller companies with a different perceived ideological bent.” Florida’s targeting of specific viewpoints is “evident” in the law’s text and “completely undisguised in the official statements accompanying S.B. 7072’s signing,” CCIA and NetChoice said.

The law’s disclosure rules “will hand malicious actors a blueprint” for getting around content moderation systems “inviting an influx of spam and vile content,” said The Cato Institute in an amicus brief in the cross-petition docket. That’s an argument that may resonate with the justices because of other cases before the court on similar subjects, said a CCIA spokesperson. Gonzalez v. Google and Twitter v. Taamneh are cases that concern content moderation and posts from terrorist groups. “This is particularly interesting as SCOTUS hears the terrorist content cases as it would basically make that situation worse by having companies give info that would help the bad actor circumvent the algorithm next time,” said CCIA.

It’s not clear what effect tech billionaire Elon Musk’s purchase of Twitter could have on the case, Goldman said. It could make it easier for the tech groups to argue that the law violates the First Amendment since it could now be seen as targeting diverse viewpoints, Goldman said. The confluence of a number of cases on content moderation and the internet appearing before SCOTUS at the same time could lead to “horse-trading” among the justices, where concessions on one case are exchanged for consensus on another. That could lead to rulings that aren’t as favorable for the tech groups, he said.

CCIA declined to comment on Musk, but said it "would be taking on this case regardless of our membership as it's a key First Amendment principle that impacts any website that allows comments."

Along with Florida, 17 other states have called for the Supreme Court to rule on the law. Texas Attorney General Ken Paxton (R) announced Friday that Texas was joining with Ohio, Alabama, Alaska and others in their amicus brief filed last week in support of Florida. Responses to the cross-petition are due Nov. 25.