Florida Seeks to Narrow Scope of High Court’s Potential Social Media Case

The Supreme Court should deny the tech industry’s attempt to throw out Florida’s entire social media content moderation law, Florida Attorney General Ashley Moody (R) argued last week before the high court in docket 22-393 (see 2210280049).

Florida asked the court to reject a cross-petition from NetChoice and the Computer and Communications Industry Association. Both Florida and the tech groups are seeking review of Florida’s law SB 7072 but have presented different questions for the court. Florida opposes the tech groups’ efforts to have the law’s “modest disclosure” requirements for social media companies thrown out. The tech industry is asking the court to hold that the First Amendment allows social media companies to conduct their viewpoint “abuses” in “darkness,” said Moody.

The tech groups asked the court to decide whether SB 7072 is viewpoint discriminatory because it “singles out a subset of social media platforms,” wrote Moody. The 11th U.S. Circuit Court of Appeals correctly rejected the argument that the law is viewpoint discriminatory, said Moody, arguing the tech groups relied on “cherry-picked” statements from the Florida legislative record. SB 7072 was designed to protect all Floridians, she said.

Moody rejected the tech groups’ argument that the appeals court erred in upholding some of SB 7072’s disclosure requirements based on the high court’s 1985 decision in Zauderer v. Office of Disciplinary Counsel. Zauderer held that a “commercial disclosure requirement must be reasonably related to the State’s interest in preventing deception of consumers and must not be unjustified or unduly burdensome such that it would chill protected speech,” noted Moody. The 11th Circuit, citing Zauderer, concluded that with “one notable exception, it is not substantially likely that [Florida’s] disclosure requirements are unconstitutional,” argued Moody.

The appeals court rightly reasoned that government has a legitimate interest in ensuring consumers are fully informed and not misled about content moderation polices, she said. Granting the cross-petition would “needlessly distract” from the “clean legal issues” Florida has laid out for the court, in which the circuits are split and “cry out for review,” said Moody.

The 11th Circuit improperly applied and analyzed the Zauderer test in its decision, said Eric Goldman, Santa Clara University School of Law professor, in his filing. Zauderer applies in only a narrow set of circumstances, which don’t include compelled editorial transparency, said Goldman. Florida’s law doesn’t meet the preconditions for the Zauderer test, he said, asking the court to grant the cross-petition for review.

The Supreme Court should review the entirety of Florida's social media law “and confirm that the First Amendment does not tolerate such restrictions and burdens on the speech of private actors,” said a joint brief including tech groups CTA, TechNet and the Software and Information Industry Association. The law removes platforms’ "very utility, denies them editorial control over the speech and ideas they host, and threatens severe harm to platforms and to their users,” they said. “It also requires platforms to redesign their essential operations and to implement onerous notice processes for each of the billions of pieces of content moderated."

Florida's law aims to end moderation only for the "most successful" platforms with 100 million or more regular users or gross revenues greater than $100 million,” and violators could face private lawsuits with potential for $100,000 fines per found violation, said the tech groups’ brief. "For platforms that take millions, if not billions, of content moderation actions per year, this liability is guaranteed to chill platforms’ essential expressive activity."

Florida’s law negatively affects not only social media but also any website that allow user comments, said the Copia Institute, a think tank by Floor64, a privately held business that runs Techdirt.com. If websites can’t moderate comments, some may decide not to provide a comments function at all, the institute wrote. The 11th Circuit “correctly recognized the constitutional infirmity for some of the more egregious provisions but overlooked it with respect to others,” it said.

Techdirt can’t meet some transparency requirements including showing how many people have read their comments and having a data export mechanism, said the institute: Building such functions "would come at the expense of other expressive activities it would rather choose to spend its resources on." It’s impossible for Techdirt to disclose moderation standards "because its moderation system is primarily community-driven and subject to the community’s whims and values of the moment,” said the institute: Editors might overrule the community "due to exigent circumstances which can neither wait for the next monthly opportunity to change the moderation practices ... nor be for a reason that can be publicly disclosed.”

"The court of appeals wrote an impeccable opinion, save for about three pages" upholding the law's transparency rules, TechFreedom wrote. The 11th Circuit should have applied strict or intermediate scrutiny to those requirements rather than an "undue burden" standard from Zauderer, said the think tank: SCOTUS should clarify that Zauderer doesn't apply. Transparency rules "bring the state into an unhealthy entanglement with the editorial process: there is no logical limit to governmental demands to supervise how platforms decide what speech to disseminate,” it said. “Such requirements are just another way of controlling the editorial process."

SB 7072’s approach of government-regulated speech is “not consistent with the First Amendment,” said ex-Rep. Chris Cox, R-Calif., who co-wrote the Communications Decency Act Section 230 with then-Rep. Ron Wyden, D-Ore. “By granting plenary review of all the questions this matter presents, this Court can make clear for legislators and millions of websites that the First Amendment, complemented by Section 230, protects websites’ ability to moderate user content,” argued Cox.