• by Wendy Davis  @wendyndavis, December 7, 2023

Etsy, eBay and Yelp have joined a growing list of companies and organizations urging the Supreme Court to strike down laws in Florida and Texas that prevent tech platforms from moderating content.

“It ought to be fundamental to the First Amendment that a marketplace for handmade t-shirts and coffee mugs should not be forced by a state’s 'free speech' regulations to carry “I ♥ Hitler” paraphernalia out of 'fairness' to all viewpoints,” Etsy, eBay and others say in a friend-of-the-court brief filed Thursday. “This case should be that simple as a First Amendment matter.”

Yelp adds in a separate brief that the Florida and Texas laws, if interpreted broadly, could prohibit it from enforcing its content policies, or even using recommendation software “to distinguish between reliable and unreliable reviews, and removing reviews from the platform.”

The arguments come in a battle over laws in Florida and Texas that, if allowed to go into effect, would restrict large tech companies from suppressing content posted by users.

The Texas law prohibits social media platforms with at least 50 million users from removing or suppressing lawful posts based on viewpoint, while Florida's law prohibits large social media platforms from “censoring” journalistic enterprises based on content, and from banning candidates for statewide office (or suspending them for more than 14 days). Laws in both states were fueled by right-wing lawmakers' accusations that technology companies are especially likely to suppress conservative posts.

Tech industry organizations are challenging the laws as unconstitutional, and the Supreme Court is expected to hear arguments and issue a ruling next year.

Etsy, eBay and others -- including the trade group Marketplace Industry Association -- argue in their friend-of-the-court brief that the statutes interfere with companies' ability to "operate the kind of website that they believe in and that they hope will appeal to customers."

The companies add that even though the Florida and Texas laws currently only apply to large platforms, a ruling upholding those laws could lead to new, broader statutes that would apply to smaller companies.

“Online marketplaces -- and the countless small businesses and individuals who rely on them -- depend upon their ability to engage in content moderation,” the friend-of-the-court brief states.

“Such moderation includes both limiting what kind of items are sold and surfaced to users on their platforms, as well as setting standards for how users interact with each other on the website,” eBay and the others add. “These platforms should not be forced to choose between complying with onerous government regulations on the one hand, or letting their platforms become vehicles for unsafe, hateful, spammy, discriminatory, or offensive content that is contrary to their values and harmful to their users and their bottom lines on the other.”

The Texas and Florida attorneys general are expected to file their responses next month.