By Will Merrix 
Photo credit: Signe Wilkinson – Cartoon
Social Media Moderation – Overview
This term, the Supreme Court of the United States heard oral arguments in Moody v. NetChoice LLC. The case deals with how the First Amendment interacts with the government’s attempts to exert influence over social media platform’s content moderation policies and community guidelines. Complaints against social media platforms and new outlets for moderating political (and other) discourse on their sites and channels has been a long time grievance of many members of the Republican party. Complaints within the party led the Republican controlled legislature in Florida to pass a law in 2021 that is being challenged as unconstitutional in Moody v. NetChoice LLC.
Republicans and The Media
The Republican party’s distrust of the media is not a new phenomenon, as it can be traced back to remarks made by Spiro Agnew in 1969. According to a Gallup poll that looked at Americans’ trust in mass media as a whole and their trust along party lines, Republicans are the most distrustful of news media and social media platforms when compared to any other political group. These findings are further supported by two Pew Research Center polls that examined Americans’ confidence in social media platforms. Pew Research found that 50% of Republicans have no confidence at all in social media companies to determine which posts are inaccurate and 90% of Republicans say that social media companies engage in censorship. Prominent Republican leaders at the national level, such as former President Trump, have called the press “the enemy of the people.” Kash Patel, the Chief of Staff to Trump’s former Secretary of Defense, threatened the press corps by promising to “come after the media who helped Joe Biden rig presidential elections” if Trump retakes the White House in 2024, referring to President Biden’s legitimate electoral win in 2020. Fox News also attacked other press organizations, often decrying the “liberal media.”
Republicans in Florida have also openly criticized the press. Governor Ron DeSantis has beamoned the “Silicon Valley elites” running social media platforms, claiming they push “partisan agendas.” DeSantis also snapped at Steve Peoples, a reporter covering the 2024 presidential campaign trail in New Hampshire, by twice saying “Are you blind?” when he asked why DeSantis was not taking questions from voters. In addition, DeSantis has shut out reporters from the Tampa Bay Times and Miami Herald from attending his press conferences. In one instance, he blocked a reporter because they requested social distancing; in another instance, he blocked a reporter for no specific reason and DeSantis Spokeswoman Christina Punshaw said that her advice to the “liberal media activists” who were denied credentials was to “try crying about it.”
Manifestations of the growing tension between the media and many conservative politicians are also evident given that many Republicans have left traditional media and social media forums, turning instead to new platforms. Former President Trump’s suspension from X (formerly Twitter), which prompted his creation of the app Truth Social, is the most prominent example. Other conservative media spaces like Breitbart, Rumble, PragerU, and The Daily Wire have opened up alternate media spaces for conservatives. On more mainstream platforms, community rules and standards are now a ubiquitous grievance among conservatives. Former President Trump has repeatedly called X’s attempts at content moderation through platform fact-checking to be “attacks of free speech.”
In Florida, the Republican-controlled legislature acted on these sentiments by passing first-of-its-kind legislation to prevent social media platforms from removing political voices. Several proponents of the legislation were open about their intent behind the law being to prevent platforms from exercising any amount of content moderation over conservative voices. In describing the motivation behind the legislation, its House sponsor Representative Blaise Ingoglia (R), said “day in and day out, our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley.” Lieutenant Governor, Jeanette Nuñez (R), described the bill as combating the efforts of “leftist media” to silence conservative voices. In 2021, before the bill was signed into law by Governor DeSantis, former Senate President Wilton Simpson (R), stated that big tech was “targeting conservatives” in a statement supporting the policy.
Florida S.B. 7072: Social Media Platforms
Florida Senate Bill 7072 (S.B. 7072) was passed by both chambers of the Florida legislature and was signed into law by Governor DeSantis in 2021. The law’s goal, as stated in the text of the legislation, is to target social media platforms that “unfairly censor” content and prevent them from placing undue restrictions on Floridians.
S.B. 7072 lays out restrictions and obligations on how, when, and if social media platforms can censor or remove users. The law requires social media platforms to provide exhaustive disclosures to their users through individualized-disclosure requirements. The disclosures must inform users about “post-prioritization and shadow banning algorithms,” changes in the “rules, terms, and agreements,” and general community moderation practices. Some of the additional individualized-disclosure requirements include, but are not limited to, the following: giving users notice before changing terms and conditions, prohibiting the change of terms and conditions more than once in 30 days, providing users with the number of people who were exposed to their post upon request, and including a “precise and thorough explanation” to users whenever their content is removed or an enforcement action is taken against their account.
The law also says social media platforms cannot censor, deplatform, or shadow ban candidates who are qualified under §106.011(3)(e). S.B. 7072 defines “shadow-bans” as any attempt by a social media company “to limit or eliminate the exposure of a user or content or material posted by a user to other users of the social media platform.” In other words, it prevents social media companies from exerting influence over the dissemination of a candidate’s content. These restrictions apply from the date a person legally qualifies as a candidate to the date their status as a candidate ends. The law further prohibits social media companies from applying “shadow banning algorithms for content and material posted by or about a user who is known by the social media platform to be a candidate.”
Under the law, platforms also cannot censor, deplatform, or shadow ban “journalistic enterprises” based on the “contents” of their publications. S.B. 7072 takes these measures, among others, and applies them to a large group of sites and platforms. The law applies to any online platform operating in the state of Florida that either has “annual gross revenues in excess of $100 million” or “at least 100 million monthly individual platform participants globally.” S.B. 7072 also backs up these restrictions and obligations with various enforcement mechanisms. The law provides a cause of action for individuals to file civil suits against platforms, in which they can be awarded up to $100,000 in statutory damages “per proven claim” plus any punitive damages the court may find. S.B. 7072 also levies “fine[s] of $250,000 per day for a candidate for statewide office and $25,000 per day for a candidate for other offices” if a platform censors, deplatforms, or shadow bans them.
Two trade associations, together known as NetChoice LLC (NetChoice), representing internet and social media companies such as Google, Meta, and Tik-Tok, promptly sued the state of Florida over S.B. 7072. Florida Attorney General Ashley Moody defended the case on behalf of the Florida government and oral arguments were made by Florida Solicitor General Henry Whitaker. NetChoice raised a facial challenge to S.B. 7072, which claims the law, under all possible applications, violated their First Amendment right to free speech. They also claimed the state law was preempted by a federal statute that would invalidate S.B. 7072. The U.S. District Court for the Northern District of Florida granted NetChoice a preliminary injunction. The court later found that S.B. 7072 was preempted by 47 U.S.C. § 230(c)(2) and violated the company’s First Amendment right to free speech by limiting their ability to exercise “editorial judgment.” The state of Florida appealed the district court ruling but the U.S. Court of Appeals for the Eleventh Circuit upheld the lower court’s decision. The state of Florida then filed another appeal to the U.S. Supreme Court.
The State of Florida’s Argument
The State of Florida makes three main arguments in its brief to the Supreme Court in order to defend its law and show how it complies with the First Amendment. First, they argue the provisions requiring censoring, deplatforming, and shadow banning regulate a social media company’s conduct, not their expression. The state of Florida claims that the law must be applied consistently under its neutrality provisions and it also requires sites to host certain users under any circumstance in accordance with its hosting provisions.
The State of Florida leans on two cases for precedent called Prune-Yard Shopping Center v. Robins (Prune-Yard) and Rumsfeld v. Forum for Academic & Institutional Rights (FAIR). In both Prune-Yard and FAIR, the court held the regulation of mere conduct is not covered by the First Amendment. The State of Florida argues social media platforms are not expressing themselves by way of censoring, deplatforming, or shadowbanning users from their websites because those actions are “regulable conduct not expression.” Second, they claim social media companies are analogous to “common carriers.” A common carrier is generally understood to be a business which provides its services to the public indiscriminately without making decisions about with whom to do business. The State of Florida argues social media sites “host other speakers in a manner generally open to all” and are “unselective in the people and content they allow on their sites” making their operations similar to a common carrier.
Lastly, the State of Florida claims even if S.B. 7072 does regulate expression, it should be reviewed under intermediate scrutiny. Under intermediate scrutiny, the State of Florida must prove the law furthers a substantial government interest and does so in a way that is substantially related to that interest. The State of Florida says the neutrality and hosting provisions pass intermediate scrutiny because the regulations are “content-neutral” and serve the interest of “ensuring that internet platforms apply their rules as stated and limit them from denying speakers access.” The State of Florida defends the individualized-disclosure requirement provisions because “the platforms have no substantial First Amendment interest in concealing factual information about how or why they selectively stifle the speakers they host.”
NetChoice’s Argument and the United States Supporting Brief
NetChoice is represented by Paul D. Clement who produced the primary brief for the respondents. The United States also expressed its own views in support of NetChoice as an amicus curiae or “friend of the Court” and they are represented by U.S. Solicitor General Elizabeth Prologar. Together, both briefs make three primary arguments.
First, they both independently assert that S.B. 7072 regulates expression and not conduct in several ways. The U.S. argues that the content moderation provisions of S.B. 7072 violate the First Amendment because they “directly target the platforms’ expressive activity and require them to present and promote content to which they object.” NetChoice argues social media platforms are exercising their “editorial control” over the “dissemination of information.” NetChoice cites several cases to emphasize this point. In Arkansas Educational Television Commission v. Forbes, the Court held that the First Amendment protects the “editorial discretion” of third-party speech. In Sorrell v. IMS Health Inc. the Court said the dissemination of information is “speech within the meaning of the First Amendment.” In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. the Court ruled the “presentation of an edited compilation of speech generated by other persons” falls “squarely within the core of First Amendment security.” NetChoice uses all of these cases to say the restrictions applied by S.B. 7072 are unconstitutional under the First Amendment.
Second, NetChoice and the U.S. both push back on the idea of social media platforms being analogous to common carriers in their separate briefs. To fight the analogy, the U.S. says in its amicus curiae brief that platforms are not “merely conduits transmitting speech from one person to another” but rather “presenting their own expressive offerings.” In their own arguments, NetChoice also highlights how “there is no historical tradition of imposing common carrier obligations on private parties that disseminate collections of speech.” They explain that “S.B.7072 looks nothing like a traditional common-carrier regulation” because of its application to platforms meeting specific requirements, such as the gross revenue and individual platform participants requirements, rather than applying to all of the businesses which provide a similar service.
Third, NetChoice contends that S.B. 7072 passes no level of scrutiny and if it is subject to any, it must be strict scrutiny. Under strict scrutiny, laws must further a compelling governmental interest and be narrowly tailored to achieve that interest. NetChoice argues that because S.B. 7072 is “shot through with content-based distinctions,” “countermands editorial judgment,” and “singles out” certain platforms, it is subject to strict scrutiny. They continue on by citing a previous case in which the Court stated the “concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” NetChoice also says S.B 7072 is broad enough to cover platforms whose primary objective is not the dissemination of speech, such as the online shopping platform Etsy. They ultimately argue that S.B. 7072 neither furthers a government interest nor is narrowly tailored. The U.S. separately argues that the court need not even attempt to categorize the various provisions of S.B. 7072 because none of the provisions “can withstand even intermediate scrutiny because the States have not established that they serve a substantial governmental interest.”
The New Frontier of the First Amendment
While the Supreme Court is expected to release a decision in Moody v. NetChoiceLLC over the summer, the case is indicative of a potential blindspot in modern policy related to social media and a new type of litigation surrounding the First Amendment.
Social media companies do not fall squarely within the current regulatory ecosystem of the federal government. Though the Federal Communications Commission (FCC), an executive agency tasked with the regulation of broadcasters, offers some guidance, the Supreme Court has previously found internet companies, like social media platforms, not to be broadcasters. As a result, social media companies would not be regulable under the FCC. Internet companies have also been granted exemptions from the most likely avenue the FCC would use in attempting to regulate internet providers; the Communications Decency Act of 1996, under which the FCC has the control to regulate pornographic and other content, does not apply to social media companies in the same way it does to broadcasters.
A lack of executive agency regulation over social media platforms is irregular considering administrative agencies oversee various private sectors. The Occupational Health and Safety Administration (OSHA) and the Environmental Protection Agency (EPA) regulate a myriad of public and private companies, for example. A lack of federal oversight has pushed the courts to arbitrate the attempts of states like Florida and Texas to regulate these companies rather than the executive actions of a federal agency. For executive agency regulation, there is already a long and well-established case history with a judicial holding known as chevron deference. Under chevron deference, the regulatory actions of an executive agency would be subject to a clear path of judicial review that avoids the First Amendment constitutional question in Moody v. NetChoice because Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. established a specific two step test for executive actions while state actions are typically reviewed under the Constitution. Chevron deference itself faces an uncertain future and is before the court this term as covered in a previous article published in the Political Review at Florida State. Attempts at social media company regulation are indicative of a new type of First Amendment litigation based on consequence-free speech.
In a case during the last court term, The Church Of Jesus Christ Of Latter Day Saints filed an amicus curiae brief in support of the right of a website creator to refuse serving same-sex couples. In their brief, the church writes “religious people and institutions who cherish traditional marriage have a First Amendment right to say what they believe and refrain from saying what they disbelieve, without becoming outcasts or pariahs because of their sincere religious beliefs.” The church argues free speech comes with “constitutional breathing space” for “unpopular beliefs.” Courts may have to decide how much “constitutional breathing space unpopular beliefs” are owed to social media platforms or to social media users as third parties in addition to what consequences third parties can enforce and how “unpopular” of a belief can be protected.
Moody v. NetChoice will answer whether the state government can insulate people from the reactions and consequences of private social media companies. More questions about whether or not the First Amendment insulates people from the reactions and actions of others to their speech could potentially come to the Court. While young people continue to dominate the usage of social media platforms, these new types of First Amendment cases stand to impact them the most. As more lawsuits focus on mitigating third-party responses to others’ speech, cases like Moody v. NetChoice are at the forefront of a new First Amendment frontier.