Wherein The Copia Institute Tells The Supreme Court The Florida Social Media Law Is An Unconstitutional Mess That Needs Its Review
from the don't-wait-to-fix-this dept
The Copia Institute was back at the Supreme Court last week with a new amicus brief urging it to grant review of the Eleventh Circuit’s decision in NetChoice v. Moody. That case, if you remember, took issue with the Florida’s attempt to regulate the Internet with its social media bill (this was the one with the erstwhile “theme park exception.”). And that decision was largely a good one, with some strong language by the Eleventh Circuit explaining how platform moderation was a First Amendment-protected activity that states couldn’t mess with.
So since the Eleventh Circuit decision got so much right, why would we want the Supreme Court to review it? One big reason: because it only got most of it right. We noted at the time several ways where the Eleventh Circuit failed to recognize how certain provisions also offended the First Amendment at the same time it recognized when others did. They matter too, especially since the Eleventh Circuit dissolved the injunction over them.
Another reason is that Florida is petitioning for review over the parts of the Eleventh Circuit decision it lost on. And as long as the Supreme Court may be tempted to grant that review, it made sense to support the NetChoice cross-petition urging review of the bits where it had lost (those parts, as discussed above, where the Eleventh Circuit hadn’t recognized the First Amendment violation).
It would also help to get some clarity over these issues sooner before later because they keep coming up. We still have the NetChoice challenge over the Texas social media law to deal with, where the Fifth Circuit completely ignored the First Amendment concerns involved with state attempts to regulate Internet platforms. A further petition to seek review over that case may yet come, and it may be better for the Court to review all these regulatory attempts contemporaneously, rather than provide more piecemeal review one at a time, because ultimately the same constitutional issues are in play in each such law, regardless of how they are couched in their own statutory language.
Meanwhile, in the next few months the Court is planning to hear two cases on the merits involving Internet platforms: Gonzales v. Google and Twitter v. Taamneh. Those cases more directly implicate Section 230, but it is nevertheless good to take a moment now to remind the Court in these briefs how operative the First Amendment is over the provision of platform services – after all, much of what people say they don’t like about Section 230 is actually what they don’t like about the First Amendment, and courts should be dissuaded from taking out that frustration on the statute, particularly when that statute is so critical to vindicating the platforms’ First Amendment rights. Hopefully this amicus brief illustrating why those First Amendment rights need protecting can help raise the Court’s awareness before it adjudicates these other cases.
As per usual, the Copia Institute filed this brief wearing its two hats: as a longtime commentator on all these issues, and as someone whose own expressive activity stands to be affected by the Florida statute. Potentially directly, because there’s little assurance that the statute couldn’t reach it – and if not this statute, then the next one to get on the books – and because, to the extent that it chills the ability of platforms to remain available to facilitate user expression, that also means that the Copia Institute’s user expression will take a hit. We may, for instance, want to post a link to Techdirt posts on social media platforms to encourage people to come read them, but if there are no social media platforms, it will be hard to reach readers to make them aware of our posts. The irony is that the Florida law claims that it’s about supporting journalistic enterprises, of which Techdirt is one, but as we explained to the Court in our brief, ultimately its meddling will do us no favors. Florida’s meddling is unconstitutional, as is Texas’s, as is the next terrible bill being cooked up by a legislature. Expression is never advanced by eroding the First Amendment. And now is a good time for the Supreme Court to say so.