Big Tech Seeks Supreme Court Review of Online 'Must-Carry' Law

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Computer companies and edge providers are asking the U.S. Supreme Court to weigh in on the issue of whether state governments can impose what the Computer & Communications Industry Association (CCIA) is branding must-carry for online platforms and a "road map" for those wishing to fill the internet with offensive content edge providers would have to carry.

Cable operators have long been subject to must-carry rules governing carriage of broadcast stations, carriage those operators have also argued is compelled speech that violates the First Amendment, though those rules remain on the books.

CCIA and NetChoice, whose members include Amazon, Apple, Google, Facebook, and many others, have been making the same argument against a Florida law that made platforms liable for third-party speech.

On Monday (October 24), they filed a petition with the High Court asking it to rule on the constitutional issues after the State of Florida did the same.

The 11th U.S. Circuit Court of Appeals last May upheld a lower court's injunction against the enforcement of provisions in the law that restrict social media platforms' ability to moderate content while the underlying issue made its way through the courts. That court suggested Big Tech was likely to win on its First Amendment arguments.

But that appeals court left in place content moderation disclosure obligations computer companies say are unnecessarily, and unconstitutionally, burdensome to speech and hope the Supreme Court agrees with them.

The law was the product of a Republican-controlled legislature. Republicans have argued that Silicon Valley giants have attempted to suppress conservative speech in the guise of moderating their platforms and under the protection of Section 230 of the Communications Decency Act, which exempts them from civil liability over most of that third-party content.

Asserting that “social media platforms have unfairly censored, shadow-banned, deplatformed and applied post-prioritization algorithms to Floridians,” the law removed that Section 230 civil liability protection for content on Big Tech platforms — like Facebook or Twitter — that violated the law, including allowing for monetary damages up to $250,000 per day for deplatforming political candidates for statewide office and $25,000 for non-statewide offices.

That law, including the reporting obligations, “abridges websites’ editorial decisions and imposes crippling ‘disclosure’ obligations, forcing websites to explain each of the countless decisions they must make every day,” the CCIA/NetChoice petition said. “Such compelled obligations not only inflict enormous compliance burdens, but would provide a roadmap for those wishing to evade efforts to eliminate offensive content.” ▪️

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.