Former President Donald Trump is urging the Supreme Court to hear a case from Florida that asks the court to decide if states have the power to regulate how social media companies moderate content on their platforms.
Last week, 16 states also asked the high court to take up the case.
The case is important because it pits the right of individual Americans to freely express themselves online against the right of social media platforms to make editorial decisions about content.
Republicans and conservatives have complained for years about being censored by the platforms. They were furious when platforms banned Trump in January 2021, blocked a New York Post article about Hunter Biden’s laptop, and silenced dissenting opinions about the origins of the CCP (Chinese Communist Party) virus and on treatments for the disease it causes.
Democrats and liberals, on the other hand, say the platforms don’t do enough to suppress so-called hate speech and alleged misinformation.
Trump filed a friend-of-the-court brief in support of Florida’s appeal of a ruling by the U.S. Court of Appeals for the 11th Circuit that blocked portions of Senate Bill 7072, which requires policy transparency and protects user access to social media platforms.
Florida Gov. Ron DeSantis, a Republican, signed the law on May 24, 2021, saying it makes sure “real Floridians across the Sunshine State—are guaranteed protection against the Silicon Valley elites.” DeSantis is seeking reelection on Nov. 8.
“Many in our state have experienced censorship and other tyrannical behavior firsthand in Cuba and Venezuela. If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.”
Under the law, platforms are forbidden to ban political candidates and must make public and consistently apply their moderation rules. Booting candidates can lead to fines of up to $250,000 a day.
But the 11th Circuit struck down part of the law, finding that “with minor exceptions, the government can’t tell a private person or entity what to say or how to say it.”
Even the “biggest” platforms are “‘private actors’ whose rights the First Amendment protects ... [and] their so-called ‘content-moderation’ decisions constitute protected exercises of editorial judgment.”
Separately, Trump is the lead plaintiff in three separate class-action lawsuits pending against Twitter Inc., YouTube LLC, and Meta Platforms Inc., which operates Facebook. The legal actions claim the social media companies are violating the Florida law.
“Florida’s law is an attempt to ensure that platforms state their censorship policies and apply them consistently,” the brief said.
“Recent experience has fostered a widespread and growing concern that behemoth social media platforms” are using their power to crush political opposition.
“This concern is heightened because Platforms often shroud decisions to exclude certain users and viewpoints in secrecy, giving no meaningful explanation as to why certain users are excluded while others posting equivalent content are tolerated.”
The Florida law doesn’t force the platforms “to carry or ban any messages” and imposes “no rules as to what is and is not permissible.” The law “merely ensure[s] that whatever rules the Platforms adopt are fully disclosed and consistently applied,” the brief stated.
Trump’s filing comes as a majority of U.S. states are looking at legislation that would regulate social media platforms such as Twitter and Facebook in the public interest.
Texas also enacted a law that imposes limitations on the ability of social media companies to moderate speech on platforms and mandates that the companies provide disclosure to the public.
On Sept. 16, the U.S. Court of Appeals for the 5th Circuit found that Texas HB 20 was constitutional, rejecting, in its words, the “idea that corporations have a freewheeling First Amendment right to censor what people say.”
The Texas law “does not chill speech; if anything, it chills censorship,” the ruling states.
Florida Attorney General Ashley Moody, a Republican, told the Supreme Court in her brief regarding her state’s law that the “irreconcilable divide” between courts of appeals “warrants this Court’s review.”
Social media has become “the modern public square,” Moody wrote, citing a report saying that in the United States, 240 million people use social media and “almost half of American adults use social media to get their news.”
