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NetChoice Asks the Supreme Court to Affirm That the First Amendment Protects Online Speech

In May 2021, Florida enacted SB 7072 ostensibly in an effort to stop the “censorship” of certain viewpoints. The law greatly restricts social media companies’ ability to choose what content they host and creates unprecedented disclosure requirements for their private editorial processes.

Before the law took effect, NetChoice brought a First Amendment suit in federal district court against Florida, arguing that SB 7072 infringes on private platforms’ right to choose the content they host. 

SB 7072’s multiple provisions fall into two main categories: content moderation restrictions and transparency rules. The content moderation restrictions require platforms to host and display any and all posts by registered political candidates and “journalistic enterprises,” ban platforms from changing how they moderate more than once every thirty days and allow platforms to be sued for up to $100,000 for each post they moderate “inconsistently.” The transparency requirements compel the disclosure of private editorial processes, including detailed definitions platforms use to identify offensive content and spam.

The district court ruled in favor of NetChoice, enjoining the entirety of the law. The Eleventh Circuit Court of Appeals then affirmed the district court’s injunction on the law’s content moderation restrictions but reversed it on some transparency requirements. Florida then filed a petition to the Supreme Court, asking it to take up our case and partially reverse the Eleventh Circuit’s judgment so that SB 7072’s content moderation restrictions and transparency requirements may both take effect in Florida. 

NetChoice has now filed a cross-petition to the Supreme Court, also asking them to take the case, but instead so that the entirety of the law is blocked from going into effect.

In our cross-petition, we argue that the First Amendment explicitly prohibits the government from censoring private speech and media. Newspapers, TV stations and social media companies alike have a well-established First Amendment right to choose the content they host. Florida’s attempt to give the government power to compel, suppress and evaluate speech does not combat censorship; it is the very definition of censorship. For this reason, we urge the Court to affirm the Eleventh Circuit’s injunction on SB 7072’s content moderation restrictions.

We also ask the Court to grant review to reverse the Eleventh Circuit’s finding about the law’s transparency provisions. Unlike uncontroversial disclosure requirements like nutrition labels for food manufacturers – who do not engage in protected speech when they sell food – forcing social media companies to disclose editorial processes chills and distorts First Amendment activity. Under SB 7072, platforms will be coerced into moderating in ways politicians prefer to avoid their scrutiny. The Supreme Court has previously said that editorial transparency requirements for traditional publishers must be carefully drawn and allowed only under judicial supervision. Forced disclosures for online publishers should be no different.

As the Eleventh Circuit noted, the fact that the First Amendment’s fundamental guarantees cannot be tossed aside for short-term, partisan ends “would be too obvious to mention if it weren’t so often lost or obscured in political rhetoric.” Yet in the last year, from Florida to California, politicians of all stripes have introduced over 100 bills to seize control over what content gets shared on the internet. 

Without clarification in our case from the Supreme Court that the First Amendment protects private platforms’ right to choose what they host, states will usher in a new era of conflicting, burdensome regulation where information available to users will become regionally divided based on which content local politicians prefer. 

To prevent the First Amendment from becoming a hollow guarantee in the digital age, NetChoice asks the Supreme Court to grant review and enjoin all parts of SB 7072. We hope to see our petition granted soon.