U.S. Supreme Court justices hint that Florida's social media laws may be unconstitutional

U.S. Supreme Court justices on Monday heard arguments about the constitutionality of a 2021 Florida law aimed at placing restrictions on social-media platforms, with attorneys for tech companies and the Biden administration arguing the law violates the First Amendment.

Gov. Ron DeSantis and the Republican-controlled Legislature passed the content-moderation law after Facebook and Twitter, now known as X, blocked former President Donald Trump from their platforms after Trump supporters stormed the U.S. Capitol on Jan. 6, 2021.

The state’s attorneys want justices to overturn a ruling by the Atlanta-based 11th U.S. Circuit Court of Appeals that blocked key parts of the law, which was challenged by the tech-industry groups NetChoice and the Computer & Communications Industry Association.

Justices heard arguments in Florida’s appeal and separate case involving a similar Texas law.

In the Florida case, state Solicitor General Henry Whitaker argued that social-media companies do not have a First Amendment right “to apply their censorship policies in an inconsistent manner and to censor and deplatform certain users.”

But justices repeatedly questioned how far Florida could go to restrict the companies from imposing what platforms maintain are safeguards to protect users from posts about such things as terrorism and teen suicide.

“You said the design of the First Amendment is to prevent suppression of speech, and you left out what I understand to be three key words in the First Amendment … ‘by the government,’” Justice Brett Kavanaugh told Whitaker. The justice pointed to previous court rulings establishing that publishing companies have “editorial control” fundamentally protected by the Constitution.

But Whitaker, who is part of Attorney General Ashley Moody’s office, pushed back.

“I don’t agree that there is no First Amendment interest in allowing the people’s representatives to promote the free exchange of ideas,” he said. “I just don’t think that the social-media platforms are engaged in editorial control.”

The state contends that the First Amendment does not apply to the law, in part, because the platforms are similar to “common carriers,” such as telephone and telegraph companies.

“Common carriers have always conducted their businesses subject to general rules of decorum … upwards of 99 percent of what goes on the platforms is basically passed through without review,” Whitaker said.

Parts of the law in focus Monday included restrictions on content moderation by the social-media companies. The law, for example, would prevent the platforms from banning political candidates from their sites and require companies to publish — and apply consistently — standards about issues such as banning users or blocking their content. Companies could face steep penalties for violating restrictions in the law.

Tallahassee-based U.S. District Judge Robert Hinkle in 2021 issued a preliminary injunction blocking the measure, describing it as “riddled with imprecision and ambiguity.” The appeals court upheld much of Hinkle’s ruling.

Justice Amy Coney Barrett on Monday asked if the state could impose similar restrictions on brick-and-mortar stores.

“I mean, could Florida enact a law telling bookstores that they have to put everything out by alphabetical order and that they can’t organize or put some things closer to the front of the store that they think their customers will want to buy?” she asked.

Paul Clement, a former U.S. solicitor general who represents the tech-industry groups, argued that the state’s approach was unconstitutional.

“Florida’s effort to level the playing field and to fight the perceived bias of big tech violates the First Amendment several times over,” Clement said. The law “does all this in the name of promoting free speech,” he added.

The private companies’ decisions about disseminating third-party-created content to the public are editorial judgments protected by the First Amendment, Clement argued, echoing a ruling by a three-judge panel of the appeals court.

“If you are telling the websites that they can’t censor speakers, you can’t turn around and say you’re not regulating expressive activity. It’s all over this law,” Clement told justices.

Previous court decisions establishing “that you cannot have the forced dissemination of third-party speech” also have rejected “considerations of market power, misattributions or space constraints,” he said.

“Exercising editorial discretion is absolutely necessary to make the websites useful for users and advertisers,” Clement argued.

Justice Samuel Alito asked Clement about content moderation.

“Content moderation, to me, is just editorial discretion … in order to make it less offensive to users and advertisers,” Clement said.

“Is it anything more than a euphemism for censorship?” Alito asked.

“If the government’s doing it, then content moderation might be a euphemism for censorship. If a private party is doing it, content moderation is a euphemism for editorial discretion, and there’s a fundamental difference between the two,” Clement replied.

The justices also appeared to weigh options about how to proceed. For example, the court could uphold the preliminary injunction blocking key parts of the law and ask Hinkle to flesh out which parts of the law might withstand court scrutiny.

Kavanaugh asked what would happen if the law went into effect.

“We’d have to fundamentally change our business models, and each company is going to make their own judgment about how they come into compliance. What some of these companies would do is, just like, let’s do only puppy dogs, at least in Florida, until we can get this straightened out,” Clement said, adding that “some companies are getting hammered by people that say we’re not doing enough to keep material that’s harmful to children off of the sites.”

Justice Ketanji Brown Jackson pressed Clement on the part of the law that would prohibit companies from stripping political candidates from their sites.

“That means they can't be deplatformed no matter how many times they violate my clients’ terms of use, no matter how horrible their conduct, no matter how misrepresenting their speech, we still have to carry it and not just have to carry it, but under this statute, we have to give it pride of place,” Clement said.

U.S. Solicitor General Elizabeth Prelogar also argued in favor of keeping the injunction in place.

The First Amendment protects the entities “that curate, arrange and present other people’s words and images and expressive compilations,” Prelogar said.

“These platforms are private parties. They’re not bound by the First Amendment as an initial matter,” she said.

The court’s handling of the Florida and Texas cases could have widespread repercussions throughout the tech industry.

Moody, speaking to reporters after Monday’s arguments, said the court should uphold Florida’s law.

“You cannot decide that you are going to censor one political viewpoint or a type of speech over another and do that by just taking people off your platform, pushing the priority of their posts down, censoring their speech. Time and time again, we have seen how this has happened,” she said.

But Chris Marchese, director of the NetChoice Litigation Center, said the First Amendment “protects free speech, free expression, and free thought from government interference.”

“Just as the government couldn’t force Benjamin Franklin to publish its preferred messages in his newspapers, Florida and Texas can’t force websites to curate, display and spread their preferred content. The First Amendment protects us and our speech from government encroachment — not the other way around. We are confident the Supreme Court will agree,” Marchese said in a statement.

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