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Justices Urged to Weigh Social Media Laws Amid Appeals Split

Sept. 23, 2022, 9:00 AM

The constitutionality of state laws regulating Twitter Inc., Meta Platforms Inc.'s Facebook, and other social media is teed up for the US Supreme Court to decide in its upcoming term, after two federal appeals courts split on the question.

Florida asked the justices Sept. 21 to review a US Court of Appeals for the Eleventh Circuit decision largely blocking its law barring platforms from suspending politician’s accounts. The move followed a Sept. 16 decision by the US Court of Appeals for the Fifth Circuit upholding a Texas law that bars platforms with more than 50 million users from content discrimination on the basis ofto viewpoint.

Florida’s petition gives the high court a chance to weigh in on whether the First Amendment shields social media from such government-imposed restrictions.

“It would be surprising to me if we do not get a Supreme Court opinion on this matter, and this term,” said Eric Goldman, a Santa Clara University School of Law professor specializing in internet regulation. “There’s no other chance of a clear resolution until that happens.”

Social media platforms increasingly have drawn fire from critics who say they silence conservative voices on one hand, and don’t do enough to police misinformation and hate speech on the other. A new California law requiring social medial platforms to disclose their content moderation policies is expected to spur a similar constitutional challenge.

‘Great Importance’

The Supreme Court will review the Eleventh Circuit decision if at least four of its nine justices want to do so. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch have already signaled interest.

The justices last May 31 vacated a Fifth Circuit stay of a lower court’s preliminary injunction against the Texas law. Alito, in a dissent that Thomas and Gorsuch joined, said the case concerned “issues of great importance that will plainly merit this Court’s review.”

The conflict between the appeals courts “centers not on some fact-bound disagreement about how scrutiny plays out, but on whether the platforms are speaking at all, whether the platforms’ conduct is inherently expressive, whether the platforms can be treated as common carriers, and whether States have a substantial interest in regulating the platforms,” Florida Attorney General Ashley Moody (R) said in the state’s petition for review. “This Court should settle these disputes.”

The Texas and Florida laws raise important questions about social media companies’ editorial judgment, about when governments can override that judgment, and about “how courts should evaluate laws that burden that judgment in the name of transparency, fairness, or privacy,” Jameel Jaffer, executive director at the Knight First Amendment Institute, said in a statement.

“If the Supreme Court hears this case, its answers to these questions will define free speech online for a generation,” he said.

Split Decisions

On Sept. 16, the Fifth Circuit reversed a district court’s ruling blocking the Texas law, which also would allow Texas residents to sue platforms if posts are removed by claiming that their content is being censored.

That ruling follows one from the Eleventh Circuit in May that said it was unconstitutional for Florida to stop social media platforms from banning politicians. However, the court lifted a preliminary injunction against the law’s disclosure provisions regarding publishing a platform’s standards, changes to a platform’s rules, view counts, free advertising for candidates, or a user’s access to their data after receiving notice of removal from a platform.

The Eleventh Circuit “dealt a mortal blow to the power of governments, state and federal, to protect their citizens’ access to information in the modern public square,” Moody said in Florida’s filing.

Tech companies, already concerned about government attempts to regulate their platforms, now have to worry about the circuit split the Fifth Circuit has created for the Supreme Court to consider, said Nina Brown, an associate professor at Syracuse University.

“If I’m an in-house counsel, I’m now worried that the Supreme Court is going to get it wrong, that the Supreme Court is going to rule in some way that’s very inconsistent with the way that we’ve understood the First Amendment,” Brown said.

Both sides favor a Supreme Court review.

“We agree with Florida that the U.S. Supreme Court should hear this case, and we’re confident that the First Amendment rights of websites will be upheld,” Carl Szabo, vice president and general counsel of NetChoice, which challenged both states’ laws, said in a statement. “We have the Constitution and over a century of precedent on our side.”

‘Culture War’

Tech groups challenged the state laws that Republican lawmakers, including Florida Gov. Ron DeSantis and Texas Gov. Greg Abbott, have championed as a means of protecting conservative speech.

“Unquestionably, the laws are part of a broader culture war taking place in our country, and the Supreme Court can’t ignore that culture war,” Goldman said. “They might address it in ways that don’t make anyone happy—that seems most likely—but the fact that the Supreme Court has taken so many culture-war cases to date reinforces that that’s just part of their docket.”

The case is Moody v. NetChoice LLC, U.S., No. 22A131

To contact the reporter on this story: Jennifer Kay in Miami at jkay@bloomberglaw.com

To contact the editors responsible for this story: Keith Perine at kperine@bloomberglaw.com; Tonia Moore at tmoore@bloombergindustry.com