Today, TechFreedom filed an amicus brief urging the U.S. Court of Appeals for the Eleventh Circuit to affirm a trial court order blocking enforcement of SB 7072, Florida’s new social media speech code. SB 7072 requires large social media websites (among other things) to moderate content “in a consistent manner”; to “publish the standards, including detailed definitions,” they use to moderate content; to “categorize algorithms used for post-prioritization”; and never to “willfully deplatform a [political] candidate.”

The law also declares that those websites “should be treated similarly to common carriers.” TechFreedom’s brief takes aim at this faulty “common carriage” theory.

“The trial judge ruled that SB 7072 ‘comes nowhere close’ to passing First Amendment scrutiny,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “The judge was right. Yet Florida continues to waste taxpayer money defending a law that, even if it were constitutional, would do a lot of harm. For Florida, ‘success’ means reinstating a law that would flood social media with hate speech, spam, and disinformation.”

“The theory that social media is like common carriage is a dead end for Florida,” Barthold continued. “Social media products are expressive, like newspapers and parades. They therefore fit squarely within a First Amendment framework, not a common carriage one. Unlike entities that are properly treated as common carriers—think of transporters of commodity goods, like railroads—social media function as editors. They are constantly making decisions about whether and how to allow, block, promote, demote, remove, label, or otherwise respond to content. Curation and editing of expression is, quite simply, antithetical to the concept of common carriage.”

“SB 7072 is a First Amendment train wreck,” Barthold concluded. “The Eleventh Circuit should emphatically reject Florida’s appeal, and the states should drop their quixotic effort to regulate free expression on the Internet.”

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TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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