‘False Premise’ Drives NetChoice, CCIA Challenge to Fla. Social Media Law, Says Fla. AG

Internet platforms enjoy “enormous power over public discourse,” and Florida’s social media law, SB-7072, is “aimed at preventing the platforms from misusing that power,” said the Florida attorney general's U.S. Supreme Court brief Tuesday (docket 22-227) seeking to reverse the 11th Circuit's decision to facially invalidate SB-7072's neutrality and hosting provisions and its individualized-disclosure requirement.

SB-7072 requires the platforms to notify users of their content-moderation standards and apply them consistently, said the brief. It also restricts them “from silencing the voices of journalistic enterprises and candidates for public office,” and requires them “to disclose and explain their reasons for censoring a user,” it said.

SB-7072 is under challenge from NetChoice and the Computer & Communications Industry Association, which argue that it and the similar Texas social-media statute are unconstitutional under the First Amendment, plus that they violate the commerce clause and the equal protection and due process clauses of the 14th Amendment (see 2309290020). They also argue that the Florida and Texas statutes are preempted by Section 230 of the Communications Decency Act.

NetChoice and CCIA “contend that any government regulation of the presentation of user speech” on social media platforms “is a direct regulation of their own speech and thus is presumptively unconstitutional," said the brief from AG Ashley Moody (R): “That argument, if accepted, threatens to neuter the authority of the people’s representatives to prevent the platforms from abusing their power over the channels of discourse.”

The NetChoice and CCIA argument on behalf of their platform members rests on the “false premise” that what appears on the platforms “is their expression,” said the brief. The platforms make their money “not from speaking themselves, but from attracting billions to their platforms to speak,” it said.

Almost anyone can log onto the platforms “and post virtually any content they want,” said the brief. So the content the platforms host “is of unimaginable vastness and variety,” it said. The experience on the platforms “is also user-driven,” it said.

Users choose what to post, what to view, whom to “follow,” and what to “like,” said the brief. Weightlifting enthusiasts, for example, can seek out and follow other such enthusiasts and weightlifting content; and the platforms’ algorithms “will deliver them more of the same,” it said: “The result is a crazy-quilt mass of material that is worlds apart from what a newspaper does when it develops its own top-down unified speech product and publishes it.”

In hosting billions of speakers and petabytes of content, the platforms “are engaged in business activity -- conduct -- that may be regulated in the public interest,” said the brief. The First Amendment doesn’t afford those who host third-party speech “a right to silence the hosted speakers or to treat them arbitrarily,” it said. The telephone company, internet service provider and delivery company “can all be prevented from squelching or discriminating against the speech they carry,” and so can the platforms, it said. SB-7072's “essential function” is no different, it said.