In the wake of a July 1 U.S. Supreme Court ruling, tech-industry trade associations are attempting to reboot their litigation challenging a Florida law that limits how major social media companies moderate their platforms.
The Supreme Court circumvented the main arguments advanced by plaintiffs NetChoice and the Computer & Communications Industry Association (CCIA) by finding that lower courts did not fully adjudicate the law’s potential impacts.
NetChoice and CCIA filed their motion for a supplementary briefing on the issues involving the constitutionality of Florida’s Senate Bill 7072 – a measure passed by the state Legislature in 2021 that bars tech companies with at least $100 million in annual income from de-platforming political candidates.
SB 7072 also allows civil lawsuits against large social media companies such as Facebook and YouTube to the tune of $100,000 in damages for violations. In addition, the state Department of Legal Affairs can investigate deceptive practices of social media companies under the Florida Deceptive and Unfair Trade Practices Act.
Lower courts had enjoined the state from enforcing SB 7072’s main provisions and held that the measure likely violates the companies’ First Amendment rights. But the U.S. Supreme Court pointed out a key question involving whether the law might differently affect other computer apps and websites was not addressed by lower courts.
“In ‘a facial challenge, that could well matter,’ because ‘the question in such a case is whether the law’s unconstitutional applications are substantial compared to its constitutional ones,’” the motion filed by CCIA and NetChoice states.
The tech associations are asking the 11th Circuit Court of Appeals to order the submission of new briefing documents from the parties so that the court can address whether it can resolve the U.S. Supreme Court concerns or whether the case has to be remanded to the district court for a full-blown review of the facts.
Florida officials are calling for the latter option, saying in response to the NetChoice and CCIA motion that the proposed supplemental briefing before the 11th Circuit is unnecessary.
“This case must be remanded to the district court because the record is ‘underdeveloped’ and ‘incomplete,’ lacking the evidence necessary to pass on the preliminary injunction,” the Florida Attorney General’s Office said in its brief. “On remand, the parties can develop a record based on the Supreme Court’s guidance, and the district court can apply the guidance in the first instance.”
Stephanie Joyce, the CCIA’s senior vice president and chief of staff, said the trade association is prepared to address the U.S. Supreme Court’s concerns quickly.
“It is a question the CCIA and NetChoice are ready, willing and able to answer,” Joyce told the Florida Record. “Because of the way the law was written … this question is not difficult whatsoever.”
Supreme Court Justice Elena Kagan has stated that it is never OK to force someone to speak, she said. The NetChoice / CCIA motion adds that the Supreme Court views editorial judgments such as social-media content moderation as meriting First Amendment protection.
“Private actors cannot be told what to say or what not to say," Joyce said. “The government is telling a website that you can't take anything down. That’s unconstitutional.”
Texas has a similar law restricting social media companies from moderating users’ political content or banning certain users.