The Supreme Court has long recognized that states may impose factual disclosure requirements on commercial entities. Florida’s law does this by requiring platforms to publish their content-moderation rules, apply them consistently, and give notice and an explanation of speech suppression decisions. In addition, Florida’s law provides other beneficial consumer protection measures that promote free expression and individual autonomy.
But Florida’s law goes too far in keeping platforms from posting their own content, such as labels or fact-checks. Platforms, as much as their users, enjoy a First Amendment right to affirmatively post their views (as opposed to “expressing” themselves by disrupting or censoring the speech of others). Silencing one party’s speech is not typically an acceptable means of securing another’s speech rights. Florida’s law also veers into constitutionally impermissible content-based restrictions when it grants special status to political candidates, journalistic enterprises, and the Walt Disney Company. A clearer example of speaker-based distinctions that reflect legislative speech preferences is difficult to imagine.
The Court should sever the law’s impermissible provisions, but leave intact those core provisions that provide for disclosure, notice, and consumer transparency.