Fla., Texas Laws Would Thwart Tech Firms' Ability to Address Harmful Content: CCIA

SCOTUS on Feb. 26 will hear the tandem cases challenging the constitutionality of both states’ social media laws seeking more government control over what content is displayed online. The related cases present questions about whether and to what extent the First Amendment permits states to regulate social media platforms.

SB-7072 and HB-20 have largely been blocked from taking effect while challenges have been pending, said CCIA in a Thursday news release. Other states are watching the case closely as various state legislatures introduced over 200 content moderation bills last legislative session, it said.

The plaintiffs argue that both statutes violate the First Amendment “by forcing private entities -- websites -- to publish all third-party speech or face onerous regulatory obligations,” CCIA said. Florida's law aims to end moderation only for the most successful platforms with 100 million or more regular users or gross revenues greater than $100 million, and violators could face private lawsuits with potential for $100,000 fines per found violation.

The case is about more than “the First Amendment rights of businesses to decide what speech they disseminate,” said CCIA President Matt Schruers. “We need to ensure tech services can deliver on their commitment to address harmful content in their communities, and these Florida and Texas laws would thwart that.”

Florida’s claim that SB-7072 doesn’t regulate speech at all “blinks reality and belies Florida’s own explanations for the law, which are replete with professed concerns about the messages that it perceived certain websites to convey through their editorial choices,” said the respondents' reply brief (docket 22-277). Courts have held “time and again” that disseminating the speech of others is “core expressive activity” that is “as protected by the First Amendment as disseminating one’s own speech,” the reply said.

Florida asserts that SB-7072 regulates conduct, “not expression protected by the First Amendment,” said the brief, but when a website organizes and disseminates compilations of speech to its users that include some of the website’s own speech, and excludes user speech “deemed inconsistent with its terms of use and business model,” it engages in expression protected by the First Amendment, the brief said. The court has long recognized that newspapers, bookstores and broadcasters engage in “communicative acts” when they disseminate a “compilation of the speech of third parties," it said, citing Arkansas Educational Television Commission v. Forbes.

Florida claims newspapers and bookstores are different because they select and compile materials they present, but websites like Facebook and YouTube also employ “human reviewers and customized algorithms to arrange and display the content they deliver,” the brief said. Florida claims newspapers and bookstores are more selective about what they disseminate, but the high court has “has already rejected the notion that First Amendment protection turns on how much speech a private party excludes,” the brief said. Citing "editorial discretion" used by websites, the brief said they "filter out some offensive content, add addendums and disclaimers to other content, and factor in some user input when determining what to display and how,” it said. The resulting compilation of speech “is plainly the website’s own expression,” it said.

Texas’ “revolutionary interpretation” of the First Amendment, meanwhile, would require SCOTUS “to overturn multiple lines of cases,” said NetChoice and CCIA’s reply brief (docket 22-555) to that case Thursday. Under the state's theory, governments would have “virtually unchecked authority to control and burden the editorial choices of private parties who publish and disseminate speech,” the brief said. But Texas Attorney General Ken Paxton’s (R) brief is full of arguments SCOTUS has “repeatedly rejected,” confirming that HB-20 “interferes with Petitioners’ First Amendment rights,” the brief said.

Paxton “insists that there is ‘no free-standing’ right to editorial discretion,” said the reply brief. But cases including Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Pacific Gas & Electric Co. v. Public Utilities Commission of California and Miami Herald Publishing Co. v. Tornillo “recognize precisely such a right,” it said. The three cases confirm that the First Amendment “protects a wide range of speech dissemination by private entities” and that entities that publicly disseminate speech “may choose the content of that speech,” it said.

The brief says Paxton suggests Rumsfeld v. Forum for Academic & Institutional Rights (FAIR) “silently overruled this settled law,” but instead FAIR “distinguished Tornillo, PG&E, and Hurley as cases where private parties ‘determine[d] the content of their’ publications." SCOTUS rejected a state effort to elevate FAIR over the body of precedent last term in 303 Creative v. Elenis, it said. The high court has made clear that First Amendment protection extends beyond creation of speech to the dissemination of speech created by others, the brief said.

The respondent’s argument to consider market power -- that covered websites are different from other publishers because “'dominant market shares’ purportedly allow them to exercise ‘unprecedented’ and ‘concentrated control’ over speech” fail because the same arguments were rejected in PG&E and Tornillo, it said.

Paxton argued that courts must consider how selective a publication is, distinguishing covered websites from newspapers, but Hurley “rejected that the degree of selectivity determines whether the First Amendment applies,” said the brief.

Paxton views covered websites as “'today’s descendants of’ mail, telephone, and telegraph carriers,” said the brief, “but covered websites do not passively carry unaltered messages from point to point.” Instead, they disseminate curated collections of third-party speech to broader audiences (while selling advertising made attractive because of those audiences) in a similar way that movie theaters, newspapers, and cable programmers do,” it said.

Imposing a “'form of common carrier obligation’ to restrict editorial discretion therefore 'burdens [their] constitutionally protected speech rights,’” said the brief, citing Denver Area Educational Telecommunications Consortium, Inc. v. FCC. SCOTUS has historically recognized the difference “between ensuring equal access to non-expressive services like inns, railroads, and telephone lines, and forcing an expressive business to change the message it delivers to the public by accepting all comers,” it said. And contrary to Paxton’s claims, “covered websites do not take all comers," it said.