June 8, 2023

CNN Business

Florida has asked the Supreme Court to rule on whether states can force social media companies to host content they’d rather have removed — setting up a potential landmark battle over digital speech rights and content moderation that could reshape the country’s relationship with the First Amendment.

In a petition filed with the Court on Wednesday, Florida’s attorney general argued that the dominance of major social media platforms and their ability to promote the views of some users over others means it is critical for judges to weigh in on the issue.

“The question of whether the First Amendment fundamentally prevents the states — and presumably the federal government — from meaningfully addressing those distortions should be answered by this Court, and should be answered now,” the petition states.

At the heart of the court battle is a Florida law, SB 7072, that allows political candidates to sue social media companies if they are blocked or removed from the platforms for more than 14 days.

Opponents representing the technology industry sued to block the law, arguing that it violates the First Amendment rights of private companies. Earlier this year, a federal appeals court agreed with that reasoning, leading to Florida’s request for Supreme Court intervention this week.

Top legal experts say that if SB 7072 survives a legal challenge, tech companies could be forced to host spam, hate speech and other legal but problematic material on their platforms. It could also overturn decades of First Amendment precedent that barred governments from compelling private parties to give speech, they said.

In a statement Wednesday, NetChoice — one of the challengers to the Florida law — said it welcomed Florida’s petition.

“We agree with Florida that the US Supreme Court should hear this case, and we are confident that First Amendment rights will be upheld,” said Carl Szabo, vice president and general counsel of NetChoice. “We look forward to seeing Florida in court and upholding the lower court’s decision. We have 200 years of precedent on our side.”

The petition comes days after another federal appeals court upheld a similar law in Texas that allows social media users to sue platforms if they move to “block, ban, remove, deplatform, demonetize, de-amplify, restrict, deny equal access or visibility or otherwise discriminates against expression.” (In May, the Supreme Court temporarily blocked the Texas law from taking effect while litigation continues.)

Last week’s decision by the Fifth Circuit Court of Appeals to uphold the Texas law contradicts an Eleventh Circuit ruling earlier this year that found Florida’s law unconstitutional — creating a rift that makes it more likely the Supreme Court will intervene.

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