of the let’s go-gooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo dept
Back in May, an 11th Circuit Court of Appeals found that Florida’s ridiculous content moderation law was clearly unconstitutional, largely upholding a district court ruling that said the same thing. As you will recall, Florida passed this law, mainly in response to Trump’s social media ban, which restricts the way websites can moderate content that primarily focuses on content posted by politicians. The 11th Circuit has pushed back part of the lower court’s decision, saying the law’s transparency requirements are likely to be constitutional.
As you also know, Texas passed a similar law, and the various battles over the laws of both states have been largely intertwined. Last week, the 5th federal court issued its confusing decision (we’ll learn more about that soon) that basically ignored a century’s worth of the 1st Amendment Act while misinterpreting other existing precedents as well as Section 230 literally rewrote and pretended to somehow control it 1st amendment.
In any case, Florida had told lower courts over the summer that it intended to ask the Supreme Court to hear the appeal of its statute, and finally did so on Wednesday. Florida has petitioned the Supreme Court to review the decision, highlighting the two key issues it sees from the ruling. While the Supreme Court does not have to deal with the case, it seems likely that it will. It is possible that an appeal against the 5th Circuit Court’s decision will also be consolidated in this case, or perhaps remain separate.
Florida presents this as the two questions the appeal seeks to answer:
1. Whether the First Amendment prohibits a state from requiring that social media companies host third-party communications and regulating the time, place, and manner in which they do so.
2. Whether the First Amendment prohibits a state from requiring social media companies to notify their users and provide them with an explanation when they censor what the user has said.
Both of these questions could have a major impact on the future of the internet. The answer to both should be yes. In fact, there’s some argument that it’s a little odd that Florida constructed the questions so that the answer should be “no” rather than “yes.” But beyond that, this case is going to be a big, big deal.
It’s unclear if Florida intentionally waited for the 5th circuit court’s opinion, but the petition plays up the division of the county between the 5th and 11th circuit courts.
The Fifth Circuit split with the decision below on the threshold question of whether the platforms speak at all when censoring a user’s speech.
The eleventh circuit below said yes. It reasoned: “[w]When a platform selectively removes what it perceives to be inflammatory political rhetoric, pornographic content, or public health misinformation, it is conveying a message and thereby engaging in a First Amendment “speech”.” App.19a–20a. And it came to that conclusion because it believed that “editorial judgments” are protected by the First Amendment. App.20a.
The Fifth Circle said no. Rejecting the reasoning of the Eleventh Circuit, it held that the Eleventh Circuit’s “principle of editorial judgment” is at odds with the cases of that Court. Paxton, 2022 WL 4285917, at *39. As the Fifth Circuit pointed out, this court ruled that some hosts may be denied the “right to choose whether to disseminate or honor a speaker’s message.”
This certainly speaks for the fact that the judgment of the 5th Federal Court of Justice will be consolidated in this case.
Much of Florida’s argument basically just repeats the nonsensical decision of the 5th federal court, which is to be expected. I don’t need to talk about why it’s all wrong – it’s pretty well documented. I’ll soon learn more about why multiple Supreme Court justices would have to reverse previous decisions entirely to agree to both Texas and Florida, but that’s not impossible these days.
Either way, the Supreme Court is likely to hear this, and only the future of the open internet and editorial freedom is at stake.
Filed under: First Amendment, Moderation of Content, Editorial Discretion, Florida, HB 20, SB 7072, Supreme Court, Texas
Company: ccia, netchoice