• by Wendy Davis  @wendyndavis, September 29, 2023

The Supreme Court on Friday agreed to consider the validity of laws in Florida and Texas that aim to restrict social media platforms' ability to suppress users' content.

The Texas statute (HB 20) prohibits social media platforms with at least 50 million users from removing or suppressing lawful posts based on viewpoint -- even posts with factually incorrect information about vaccines, or the Holocaust.

Florida's law (SB 7072) subjects social media companies to fines of $250,000 per day for “deplatforming” candidates for statewide office, and $25,000 per day for other offices. (The bill defines deplatforming as suspending for more than 14 days or banning.)

That law also prohibits large social media platforms from “censoring” journalistic enterprises based on content. Other provisions require platforms to disclose their policies regarding acceptable content.

The Interactive Advertising Bureau opposes both bills.

“Businesses large and small want to know that their advertising and marketing is reaching its intended audience without having their ads placed next to content they deem to be offensive or untrue,” IAB executive vice president for public policy Lartease Tiffith stated last year.

Both measures were fueled by right-wing lawmakers' belief that technology companies are especially likely to suppress conservative posts.

The tech industry groups NetChoice and Computer & Communications Industry Association challenged both laws in court. The results were mixed.

A trial judge blocked the Florida law and the 11th Circuit Court of Appeals largely upheld that decision, ruling that the law likely violated the First Amendment.

“It is substantially likely that social media companies -- even the biggest ones -- are 'private actors' whose rights the First Amendment protects,” Circuit Judge Kevin Newsom, an appointee of former President Donald Trump, wrote in an opinion joined by Circuit Judges Gerald Tjoflat and Ed Carnes.

Newsom added it's likely that content moderation decisions are “protected exercises of editorial judgment.”

The Texas law was also blocked by a trial judge, but the 5th Circuit Court of Appeals ruled that the law should be reinstated.

“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” judges on the 5th Circuit Court of Appeals wrote last year in a ruling allowing Texas to enforce the law. (That decision has been temporarily stayed.)

After the conflicting decisions came out, the tech industry groups and state of Florida asked the Supreme Court to take up the case.

The battle has so far drawn the attention of a wide array of outside organizations, including the IAB.

“Content moderation ... empowers platforms to foster online communities that fit the specific needs and values of that particular platform and its users and advertisers,” a coalition of groups including the IAB argued to the Supreme Court last year in a friend-of-the-court brief.