When the U.S. Supreme Court weighed whether to block the social media "censorship" law in Texas, an appeals court decided to maintain the ban on a similar law in Florida, which held that social media companies "are 'private actors' and their rights are protected by the first amendment".
The ruling of the 11th Circuit Court is a response to the lawsuit filed by netchoice and CCIA. The two trade groups filed an urgent application with Supreme Court judge Samuel Alito after similar social media laws in Texas came into force earlier this month. The court held that Florida's argument that social media giants were not entitled to First Amendment rights was untenable.
In its opinion, the court wrote: "no one of the founding generation can imagine Facebook, twitter, YouTube or tiktok in their wildest dreams. However, 'whatever the challenges of applying the constitution to progressive technology, the basic principles of freedom of speech and the press, like the orders of the first amendment, will not be changed by the emergence of new and different communication media'."
This opinion is in sharp contrast to the decision of the Fifth Circuit Court to lift the ban on Texas law earlier this month, which did not even have an explanation. This decision had potentially disastrous consequences for the technology industry, which led netchoice and CCIA to file an urgent application and asked the Supreme Court to postpone the decision of the fifth circuit court. The Supreme Court has not yet issued its decision, which may now appear at any time.
The 11th Circuit's ruling on Florida law upheld the ban on parts of the law that would prohibit companies from "belittling" political candidates, prioritizing or canceling posts "published or related to political candidates" and deleting any content from "news enterprises". In addition, it blocked the requirement that companies provide "good reasons" for each content review decision.
But the court did allow other disclosure provisions in the law - including clear content standards and allowing users to access their data - to remain in force and considered them "much less burdensome" and unlikely to violate the first amendment.
Whatever the Supreme Court's decision on Texas's urgent application, Florida's decision provides clues to possible circuit splitting if Texas Law (still pending appeal) is upheld. This could create an opportunity for the Supreme Court to decide once and for all whether social media platforms enjoy the rights of the first amendment or whether they should be seen as a common carrier of the new era, as suggested by judge Clarence Thomas.
The technology groups behind the two lawsuits are encouraged by the Florida ruling and what it may mean for the upcoming Supreme Court ruling. "The First Amendment protects the platform and its right to regulate content as they see fit - the government can't force them to accommodate content they don't want. This makes it more likely for the U.S. Supreme Court to overturn the Fifth Circuit Court's divergent ruling on similar Texas laws," Carl Szabo, vice president of netchoice, said in a statement