BREAKING NEWS: Florida’s Attorney General says the Supreme Court unanimously sided with her in a case where they unanimously ruled against her arguments.
Perhaps there’s a reason that Florida Attorney General Ashley Moody is so vigorously defending a Florida law that would block social media companies from diminishing the reach of disinformation: she loves spreading it herself.
Here’s Moody declaring victory based on a Supreme Court ruling she very clearly lost:
“BREAKING NEWS,” she says, “SCOTUS Unanimously Sides with Florida in Social Media Case.” Followed by: “We are pleased that SCOTUS agreed with Florida and rejected the lower court’s flawed reasoning—invalidating our social media law. While there are aspects of the decision we disagree with, we look forward to continuing to defend state law.”
Except that’s not even close to an accurate summary of what happened. As we’ve already described, the majority ruling is a pretty clear rebuke to the laws in both Texas and Florida. While it spends a lot more time focusing on the Fifth Circuit’s monstrosity, its only real fault with the Eleventh Circuit (which rejected Florida’s law) was that they didn’t jump through all the procedural hurdles for a facial challenge.
The clear point of the ruling is not that Florida’s law is fine, it’s just that the lower courts should have taken a few more procedural steps to explain why the laws were not fine. Even in Justice Barrett’s concurrence, she notes that the Eleventh Circuit got the First Amendment analysis correct:
I join the Court’s opinion, which correctly articulates and applies our First Amendment precedent. In this respect, the Eleventh Circuit’s understanding of the First Amendment’s protection of editorial discretion was generally correct; the Fifth Circuit’s was not.
So, at this point, six out of the nine Justices (including three from the “conservative” wing) agree with basic First Amendment analysis by the Eleventh Circuit (which was written by a “conservative” Federalist Society-recommended judge).
The idea that this was a victory for Florida in any sense defies not just basic logic, but basic reading comprehension.
My inbox is filled with press releases from all sides claiming victory in this case. But most of them are wrong. The victory here was for fundamental First Amendment principles applying to the internet, meaning that states cannot pass laws that prevent editorial discretion. As the majority noted:
To the extent that socialmedia platforms create expressive products, they receive the First Amendment’s protection. And although these cases are here in a preliminary posture, the current record suggests that some platforms, in at least some functions, are indeed engaged in expression. In constructing certain feeds, those platforms make choices about what third-party speech to display and how to display it. They include and exclude, organize and prioritize—and in making millions of those decisions each day, produce their own distinctive compilations of expression. And while much about social media is new, the essence of that project is something this Court has seen before. Traditional publishers and editors also select and shape other parties’ expression into their own curated speech products. And we have repeatedly held that laws curtailing their editorial choices must meet the First Amendment’s requirements. The principle does not change because the curated compilation has gone from the physical to the virtual world. In the latter, as in the former, government efforts to alter an edited compilation of third-party expression are subject to judicial review for compliance with the First Amendment.
And that means what it says: any law that seeks to curtail the editorial discretion of private websites must be reviewed under the First Amendment. That means Florida’s law isn’t going to survive. Many other state laws won’t survive either.
