Often — shading into typically — the party that wins a lawsuit in a lower court would prefer that things end there. But not in NetChoice v. Moody, the high-profile First Amendment challenge to Florida’s content-moderation statute, where the platforms that largely prevailed below have filed a brief agreeing with the state that the matter deserves the Supreme Court’s attention. While not a surprise, the filing ratchets up the likelihood that the justices will hear the case in a term that already promises to have significant consequences for the freedom of speech online.
As NetChoice’s response to Florida’s petition for certiorari underlines, the platforms think the U.S. Court of Appeals for the Eleventh Circuit got quite a lot of things right in blocking most of Florida’s effort to restrict social media firms’ freedom to curate content. That panel, as we wrote at the time, struck down all of the law’s provisions directly regulating firms’ choices about the material they do and don’t host, as well as its most burdensome disclosure mandate — a requirement that platforms provide a “thorough rationale” for each moderation decision.
But even as NetChoice praises those aspects of the decision as “eminently correct,” its response still urges the justices to review them. The Eleventh Circuit’s decision won’t be the last word on the issue, the platforms note, both because the U.S. Court of Appeals for the Fifth Circuit opened a dramatic split in NetChoice v. Paxton — by upholding a similar Texas statute — and because still more states are waiting in the wings to enact copycat laws in other jurisdictions. Since we can’t very well have a different internet for each circuit’s territorial jurisdiction, the brief says, only the Supreme Court can “bring a swift nationwide resolution to this debate.”
NetChoice has also filed a conditional cross-petition for certiorari, asking the Supreme Court to make sure that it reviews the whole Florida statute (and not just the provisions the Eleventh Circuit invalidated) if it decides to hear the case at all. In particular, the platforms haven’t given up the fight on the rest of the statute’s transparency mandates, which, they argue, the Eleventh Circuit wrongly reviewed under the lenient standard that governs “factual and uncontroversial” product disclaimers. As the petition puts it, the disclosure requirements are designed not to correct any particular risk of consumer confusion but “to make it easier for parties to sue websites for perceived inconsistencies in how they exercise their editorial discretion.”
(As we’ve explained in several friend-of-the-court briefs, we agree: The disclosure requirements are an effort to repackage editorial fairness as consumer fairness to get around the Constitution’s formidable protections for editorial judgment, and they deserve exacting scrutiny as a result.)
It was already likely, of course, that the justices would decide to hear one or the other of the NetChoice cases. It only takes four votes to grant certiorari: Three justices — Samuel Alito, Clarence Thomas, and Neil Gorsuch — have already written that they think the regulation of content moderation presents “issues of great importance that will plainly merit this Court’s review,” and five implicitly concluded that the Court may well hear the case in granting NetChoice emergency relief from Texas’s statute. (That kind of interim relief typically requires at least a “reasonable probability” that the justices will ultimately decide to review the case.)
Still, the parties’ agreement that this matter is cert-worthy ices the cake. And as NetChoice’s filings makes clear, each of the legion of questions these laws raise will be hotly contested.
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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology Press Freedom Project Fellow Emily Hockett.