Recently, our posts have discussed the rising call to reform Section 230 of the federal 1996 Communications Decency Act.  Now, a  controversial Florida Bill provides an opportunity for the Supreme Court to take up social media regulation on First Amendment grounds, potentially avoiding Section 230 reform.

Florida Bill 7072

Florida’s S.B. 7072 (the “Bill”) bars social media companies from blocking political candidates. The Bill:

prohibit[s] a social media platform from willfully deplatforming a candidate; providing fines for violations . . . providing that social media platforms that fail to comply with specified requirements and prohibitions commit an unfair or deceptive act or practice.

2021 Bill Text FL S.B. 7072.  NetChoice LLC sued the State of Florida shortly after the Bill took effect and argued that the Bill violated the company’s First Amendment protection to moderate content.  Additionally, NetChoice claimed that Section 230(c)(2) preempted the Bill’s provisions imposing liability on social media platforms for regulating content.  Section 230(c)(2) provides that

[n]o provider or user of an interactive computer service shall be held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally.”

47 U.S.C. § 230(c)(2).  The federal district court granted a preliminary injunction and blocked enforcement of the Bill in its entirety.

On appeal, the State of Florida attempted to bypass Section 230 by arguing that Facebook and other social media platforms are common carriers, which federal and state governments have the power to regulate.  A traditional characteristic of common carriers is that they hold themselves out to the public indiscriminately.  According to the State of Florida, the Bill does not trigger First Amendment scrutiny because, as common carriers, social media platforms have diminished First Amendment rights.

The Eleventh Circuit’s order upheld most of the district court’s injunction on First Amendment grounds, but, importantly, did not reach the merits on Section 230 preemption.  Per the order, social media platforms are not common carriers for three reasons:

(1) Social media platforms do not act like common carriers.  While they do hold themselves open to the public, users must accept and agree to the platform’s terms of service and abide by community standards to continue use.

(2) Supreme Court precedent supports a distinction between social media platforms and common carriers, and

(3) Congress has distinguished social media companies from common carriers—via Section 230.

In June 2022, the Eleventh Circuit granted the parties’ motion for a stay the order,  effectively pausing the case until its disposition by the U.S. Supreme Court.

Looking Forward

If the Supreme Court decides to hear the case and if it rules that social media platforms are common carriers, social media giants could be subject to unprecedented regulation.  Some regulation, like the Bill, would limit social media platforms’ ability to moderate content.  The question also remains as to whether the Supreme Court would use the case as an opportunity to address federal preemption and ultimately speak on Section 230.

Summer Associate Travis King assisted with this post