Florida before the Supreme Court: let’s regulate social networks as common carriers

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Enlarge / The United States Supreme Court building.

Getty Images | Rudy Sulgan

Florida yesterday asked the US Supreme Court to reinstate its Social Media Regulation Act that banned sites like Facebook and Twitter from banning politicians.

florida petition said the Supreme Court should answer questions about whether the First Amendment prohibits states “from requiring social media companies to host third-party communications and from regulating the time, place, and manner in which they do so” and whether the First Amendment prohibits states “from requiring social media companies to notify and provide an explanation to their users when they censor user speech.”

The Florida law is currently blocked by an order from the United States Court of Appeals for the 11th Circuit, which issued its decision in a lawsuit brought by industry groups Big Tech. Florida filed its petition in the Supreme Court several days after a Texas social media law was reinstated by the United States Court of Appeals for the 5th Circuit.

Florida’s motion points to the contrasting decisions of the 5th and 11th Circuit Courts as evidence that the Supreme Court should decide the primary issues relevant to both cases. Florida said the case regarding its own law is “an ideal vehicle” to determine “whether social media platforms” speak “when hosting third-party speech.”

A previous 5th Circuit ruling in the Texas case was overturned by the Supreme Court in May, suggesting states face an uphill battle. The governors of Florida and Texas have both argued that state laws are needed to prevent censorship of conservatives on social media.

The Big Tech industry groups that sued Florida also said they wanted the Supreme Court to decide the case.

Florida wants common carrier rules for social media

Florida told the Supreme Court that “the Eleventh Circuit erred from the outset when it found that Florida’s Social Media Act hosting regulations triggered a thorough First Amendment review.” Florida also said the court “erred in its alternative decision that the platforms’ hosting decisions were inherently expressive.”

“Then the Eleventh Circuit erroneously concluded that Florida could not regulate social media platforms as common carriers and, in doing so, require the platforms to openly accept users,” Florida explained. The state pointed to Supreme Court Justice Clarence Thomas’ opinion supporting the idea that social media companies can be treated as common carriers.

The Florida law states that a social media platform “cannot deliberately misrepresent a candidate for office” and imposes fines of up to $250,000 a day on social media companies that ban candidates for elected office. The law also states that social platforms “may not apply or use post-prioritization or shadow ban algorithms for content and material posted by or about a candidate,” and may not “censor, deplatform, or ban a content-based journalistic endeavor from its publication or broadcast.”

Florida law originally provided a “theme park” exemption for Disney, but the state legislature and Governor Ron DeSantis removed the exemption in April.

The texas law says a “social media platform cannot censor a user” based on the user’s “viewpoint” and defines “censor” as “block, ban, delete, deplatform, demonetize, de-boost , restrict, deny equal access or visibility to, or otherwise discriminate against expression.”

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