Florida is taking its controversial social media law to the Supreme Court for its take on the constitutionality of forcing companies to retain content on its platforms that the companies want removed. Florida contends that it is unfair for the platforms to promote some views at the expense of others. It is asking the Supreme Court to overturn precedent preventing governments from forcing private companies to provide a forum for extreme or untruthful expression. (CNN, September 21, 2022, by Brian Fung)
Law professor Alan Z. Rozenshtein in Lawfare, September 20, 2011, argues that the Fifth Circuit decision in the Texas social media law case was careless in its “insistence that the First Amendment has either nothing to do with content moderation or that it provides maximum constitutional protections to such practices. The opinion deserves to be swiftly overruled, either by the full Fifth Circuit or by the Supreme Court.” Rozenshtein does laud the Fifth Circuit for its challenge of “digital corporate power” and its suggestion that “intermediate scrutiny, is a promising avenue for analyzing content moderation laws.” Even though Rozenshtein thinks that the Fifth Circuit should not have ignored legal precedent in favor of an “originalist” analysis in deciding the case, he says it is not clear the the Supreme Court would decide for the social media companies. It could be that the court would grant some regulation but hopefully, he says, with some “creative legal problem solving” in play.