Possible ‘loud noon’ for social media platforms looms at Supreme Court
The August 13, 2021 Trending Law Blog post discussed how, in NetChoice, LLC c. Attorney General, State of Florida, The United States District Court for the Northern District of Florida barred Florida from enforcing a law targeting some, but not all, social media platforms based on speech content hosted on their websites. After, September 8, 2022 Trending Law Blog post discussed how, in December 2021, a federal court in Texas barred the application of a law in the case of NetChoice, LLC v. Paxton which would have prevented a lot of social media companies from moderating content. The Florida case was ultimately appealed to the United States Court of Appeals for the Eleventh Circuit, while the Texas case was appealed to the United States Court of Appeals. United States for the Fifth Circuit.
On May 23, 2022, the Eleventh Circuit issued its decision in Florida NetChoice, LLC call. The question for the Eleventh Circuit was “whether the Facebooks and Twitters of the world — indisputably ‘private actors’ with First Amendment rights — are engaged in constitutionally protected expressive activity when moderating. and organize the content they broadcast on their platforms”. The court resolved the issue in favor of the social media platforms, stating, among other things, that “we consider it very likely that social media companies – even the largest ones – are ‘private actors’ whose rights are protected by the First Amendment. . . . that their so-called “content moderation” decisions constitute protected exercises of editorial judgment, and that the provisions of Florida’s new law that restrict the ability of major platforms to engage in content moderation unconstitutionally encumber this prerogative . Thus, the Eleventh Circuit ruled that the social media companies were entitled to the preliminary injunction issued by the district court.
Several months later, on September 16, 2022, the Fifth Circuit issued its decision in Texas. NetChoice LLC call. That appeal concerned a Texas law that generally prohibited “major social media platforms from censoring speech based on the point of view of its speaker.” Social media platforms have filed a lawsuit to declare the law seemingly unconstitutional in all circumstances based on the First Amendment. In its Sept. 16 ruling, the Fifth Circuit rejected the platforms’ argument, calling it a “rather bizarre inversion of the First Amendment” because, although the First Amendment “protects everyone’s right to ‘free speech “”, the court disagreed with the platforms’ position “that buried somewhere in the person’s enumerated right to free speech is the right of a society not numbered right to muzzle So the Fifth Circuit upheld the constitutionality of the Texas law and rejected “the idea that corporations have a free First Amendment right to censor what people say.” The Fifth Circuit struck down the district court order.
Five days after the Fifth Circuit issued its NetChoice decision regarding the Texas law, on September 21, 2022, the Florida Attorney General filed a writ of certiorari with the Supreme Court to appeal the Eleventh Circuit’s decision. . NetChoice filed its own motion for writ of certiorari in the case on October 24, 2022. It remains to be seen whether either party’s motion will be granted, but, given the conflicting rulings between the fifth and Eleventh Circuits and the important First Amendment issues in play, this seems like a good opportunity for the Supreme Court to resolve the question of whether the First Amendment protects social media platforms from restrictions imposed by states seeking to regulate the how these companies moderate content on their platforms. Hopefully the issue will be resolved somehow in 2023.