Former President Donald Trump has filed a brief at the U.S. Supreme Court backing Florida in a battle about a 2021 state law that placed restrictions on social-media giants such as Facebook and Twitter.
The brief, posted on the Supreme Court website Friday, urges justices to take up Florida’s appeal of an 11th U.S. Circuit Court of Appeals ruling that blocked parts of the law on First Amendment grounds. Also last week, 16 states urged the Supreme Court to hear the case.
Gov. Ron DeSantis made a priority of passing restrictions after Twitter and Facebook blocked Trump from their platforms after Trump supporters stormed the U.S. Capitol on Jan. 6, 2021.
The law, in part, would prevent the platforms from banning political candidates from their sites and require companies to publish — and apply consistently — standards about issues such as banning users or blocking their content. Companies could face penalties for violating restrictions in the law. For example, companies that remove political candidates from platforms could face fines of $250,000 a day for statewide candidates and $25,000 a day for other candidates.
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In Trump’s friend-of-the-court brief, his attorneys disputed that the law violates the First Amendment and likened social-media companies to “common carriers,” such as railroads. The attorneys wrote that common carriers are barred from unfairly discriminating against users.
“Florida’s law is an attempt to ensure that platforms state their censorship policies and apply them consistently,” the brief said. “(Two disputed sections of the law) are in perfect harmony with long-standing common-law prohibitions against unfair discrimination by common carriers. A review of (the Florida case) will provide urgent clarity to legislatures across the nation as to how they can ensure their residents have access to the ‘modern public square.’”
The industry groups NetChoice and the Computer & Communications Industry Association challenged the constitutionality of the law in 2021, and Tallahassee-based U.S. District Judge Robert Hinkle issued a preliminary injunction blocking the measure. Hinkle described the law as “riddled with imprecision and ambiguity.”
The Atlanta-based 11th U.S. Circuit Court of Appeals in May upheld much of a preliminary injunction, prompting Florida to file a petition last month asking the U.S. Supreme Court to take up the case.
Lawyers for NetChoice and the Computer & Communications Industry Association face a Monday deadline to file a response brief at the Supreme Court, according to an online docket. As of Monday morning, a brief had not been posted.
But the industry groups in the past have said they want the Supreme Court to take up the issue. The 5th U.S. Circuit Court of Appeals has ruled in favor of a similar Texas law, creating a legal conflict and uncertainty.
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While it kept in place most of the Florida preliminary injunction, the 11th Circuit tossed out part of the injunction that blocked provisions of the law requiring social-media platforms to publish standards for determining how they censor, deplatform and “shadow ban” users. The panel also lifted the injunction on a provision prohibiting companies from changing their standards more than once every 30 days.
While Trump used Twitter heavily when he was president, he and other Republicans have targeted social-media companies for blocking people. In their brief, Trump’s attorneys wrote that Florida passed the law (SB 7072) in “an effort to ameliorate what it perceived as a dangerous distortion of the public’s political discourse.”
“(Two disputed sections of the law) represent an effort of the Florida Legislature to ensure that, like any common carrier, platforms do not unfairly discriminate against users,” the brief said. “These sections do not compel platforms to allow or endorse speech with which they disagree; they only require platforms to disclose what standards they are applying and apply those standards consistently.”
But in its May decision, a three-judge panel of the 11th Circuit said that, “with minor exceptions, the government can’t tell a private person or entity what to say or how to say it.”
“Not in their wildest dreams could anyone in the Founding generation have imagined Facebook, Twitter, YouTube or TikTok. But ‘whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears,’” Judge Kevin Newsom wrote, partially quoting a legal precedent. “One of those ‘basic principles’ — indeed, the most basic of the basic — is that ‘(the) Free Speech Clause of the First Amendment constrains governmental actors and protects private actors.’”
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