In the Supreme Court of the United States

No. [23-1685]

Meta, et al.,

Petitioners,

V.

Cordy Byrd, Secretary of State for the state of Florida,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the 11th Circuit

BRIEF OF AMICI CURIAE

JD

FOR THE PETITIONER

Date: 05/05/2023

Filed by: JD
 TABLE OF AUTHORITIES

Page(s)

Authorities

Ashcroft v. American Civil Liberties Union

542 U.S. 656 (2004) ......................................................................................................... 10

American Online, Inc. v. IMS, et al.

24f.Supp.2d 548 (1998) .................................................................................................... 8

Bethel School District No. 403 v. Fraser

478 U.S. 675 (1986) ......................................................................................................... 12

CompuServe Inc. v. Cyber Promotions, Inc.

962 F. Supp. 1015 (1997) ................................................................................................... 8

Burwell v. Hobby Lobby

573 U.S. 682 (2014) ........................................................................................................... 6

Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston Inc.

515 U.S. 557 (1995) ........................................................................................................... 9

Jackson v. Metropolitan Edison Co.

419 U.S. 345 (1974) ........................................................................................................... 7

Manhattan Community Access Corp v. Halleck

587 U.S. __ (2019) ............................................................................................................ 7

Miami Herald Publishing Company v. Tornillo

418 U.S. 241 (1974) ......................................................................................................... 10

National Institute of Family and Life Advocates v. Becerra

585 U.S. __ (2018) .......................................................................................................... 12

Reno v. ACLU
 521 U.S. 844 (1997) ......................................................................................................... 11

Turner Broadcasting System Incorporated, et al., Appellants v. Federal Communications

Commission et al.

512 U.S. 622 (1994) .......................................................................................................... 8

Wooley v. Maynard

430 U.S. 705 (1997) ........................................................................................................ 14

Statues

Cable Television Consumer Protection and Competition Act

106 Stat. 1460 .................................................................................................................. 10

Communications Decency Act

47 U.S. Code § 230 ...................................................................................................... 9, 12

Child Online Protection Act

112 Stat. 2681-736 .......................................................................................................... 12

Dictionary Act

16 Stat. 431 ........................................................................................................................ 7

Religious Freedom Restoration Act

107 Stat. 1488 ................................................................................................................... 7

Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act

117 Stat. 1952 .................................................................................................................. 13

The Patient Protection and Affordable Care Act

124 Stat. 119-1025 ............................................................................................................. 7

Trademark Act

60 Stat. 427 ...................................................................................................................... 10

Other Authorities

Hobby Lobby and the Dictionary Act

https://www.yalelawjournal.org/forum/hobby-lobby-and-the-dictionary-act …………… 6

STATEMENT OF ISSUES

1. Whether social-media based platforms fall under the definition of a traditional public

forum.

2. Do content-based restrictions on user speech of these platforms violate the users’ 1st

Amendment freedom of speech?

STATEMENT OF FACTS

1. In Demember of 2021, the state of Florida passed Fla. Stat. § 106.072 which restricted all

social media platforms with consumers of 50 million or more from placing content-based

restrictions on users including hate speech and misinformation. The law states that the

membership of these social media platforms are equivalent to national or even multinational

public forums and thus should be subject to the freedoms given under the 1st amendment.

Specifically, the state points out that any form of speech-based content restrictions placed by

Meta and its subsidiaries violate the freedom of speech and freedom of the press. This comes

after the notable efforts of Governor Ronald DeSantis and his nation-wide push for a more

“anti-woke” society. Concurrently, DeSantis is considering a bid for the Republican

nomination for the 2024 Presidential election which explains his heavy pushing of this bill.
2. Meta and all its subsidiaries alongside Youtube and Twitter sued the state of Floridia under

the principle that their 1st Amendment right to refuse service to users whose values are not

congruent with the mission of the platform: facilitating an online space for safe and free

discussion. Further, this law would mean that these companies would have to completely

undo the work they have already done of creating a purposeful algorithm that prevents the

speech that the state of Florida is advocating for. This law would discourage advertisers from

buying space on these websites which would kill the primary source of revenue that these

companies rely on.

3. When the party of Meta et al., sued the state of Florida claiming that the state violated their

status as a private entity by banning speech-based restrictions on their platforms, the US

district court for the Northern District of Florida agreed and ruled in favor. However, when

the state of Florida appealed the Court of Appeals for the 11th Circuit reversed the ruling of

the lower court. Meta et al., then appealed to the Supreme Court of the United States and the

writ of Certiorari was granted.

SUMMARY OF ARGUMENT

The law in question is unconstitutional for numerous reasons as precedent has

consistently demonstrated that corporations should be allowed to incorporate content-based

restrictions on social media to further their mission of facilitating a safe place for online

discussion. These platforms are the owners’ publications and should be held to the same bar that

any other private entity of a press-bearing corporation is. The comparison made that these

platforms are similar to what the founding fathers classify as traditional public forums lack a

serious factual basis and would set a dangerous precedent. We ask that the strict scrutiny test is

applied to the law, as the government is placing content-based restrictions on what Meta is
allowed to monitor which clearly violates their 1st amendment right as a publication corporation.

The law is not tailored narrowly enough to support the interests of the economic interests of

these privately-owned publications. We will show through prior precedents that government

intervention to this level violates Meta and its subsidiaries’ 1st amendment rights to freedom of

speech, freedom of association, and freedom of the press.

ARGUMENT

1. THE CIRCUIT COURT OF APPEALS ERRED BY DEFINING SOCIAL-MEDIA

PLATFORMS AS TRADITIONAL PUBLIC FORUMS

Before determining that the 1st amendment was violated, we must first look at whether or

not the Bill of Rights applies to a social media-based platform. The precedent set in Burwell v.

Hobby Lobby Stores., 573 U.S. 682 (2014) shows that it does. In this case, the retail company

sued that the Affordable Healthcare Act’s provision requiring the provision of free birth control

under their employee insurance violated the Free Exercise Clause of the Religious Freedom

Restoration Act of 1993. Hobby Lobby claimed that as a privately-held corporation, the freedom

of exercise law should prevent them from having to fund medication that went against their

religious values. The Court turned to the Dictionary Act of 1871 which found that the Act

included the concept of a corporation under the “persons' definition. In that case, like this one, a

private corporation's rights were threatened by a government law and the Court dictated that the

law was not the least restrictive method of following the government's interest after applying

strict scrutiny.

Next, the Manhattan Community Access Corp v. Halleck., 587 U.S. __ (2019) case

examined an incident not unlike this one. When petitioners DeeDee Halleck and Jesus Papoleto

Melendez were banned from promoting anti-MNN content from the business’s public channels,
they sued and the Court analyzed whether or not the corporation was a state actor. The Court

leaned on the state-action doctrine established in Jackson v. Metropolitan Edison Co. 419 U.S.

345 (1974) which defined a state actor as an organization that exercises “powers traditionally

exclusive from the states.” With this in mind, the Court found that as the Manhattan Corporation

was not a state actor, they were immune to the 1st Amendment as the framer's intent was for it to

only protect against “governmental abridgment of speech”, and not “private abridgment of

speech”. This precedent has many similarities to the case at hand and should be followed just the

same. Meta and its subsidiaries also do not fall under the definition of a state actor, as they are

neither reliant on the government to fulfill their purpose nor was the website established after a

delegated mission from the government. If the government truly wanted to create an online

public forum that they are advocating for here, they have the resources and ability to do it

themselves.

Additionally, Turner Broadcasting System Incorporated, et al., Appellants v. Federal

Communications Commission et al., 512 U.S. 622 (1994) had the Court Justices again

advocating for the editorial rights of the Turner Broadcasting System. Though Sections 4 and 5

of the Cable Television Consumer Protection and Competition Act of 1992 were held to be

constitutional and that the government could compel broadcasting systems to maintain local and

public stations, it was only because the Court was able to find a compelling State justification to

follow through with the “must-carry” rule. While the Court ruled in favor of the government in

this case, they still emphasized that these cable operators engaged in expressive activities and

had the right of editorial control over their content, they just also had to allow space for public

networks. Meta and its subsidiaries serve similar functions as these broadcasting companies,
though the Florida law goes beyond the scope of this decision as it is regulating the conduct of

these platforms without showing similar compelling interest.

In the case CompuServe Inc. v. Cyber Promotions, Inc. 962 F. Supp. 1015 (1997) the

District Court of Ohio found that the defendant's unsolicited e-mail to the customers of

CompuServe could be defined as trespassing due to the technical signals generated electronically

through the computer. Cyber Promotions took measures to evade CompuServe’s efforts to stop

the emails and was thus liable for trespassing on personal property and was found to have

devalued the equipment CompuServe used for their purpose. The Court also found that as the

provider was not a public entity, the defendant had no special entitlement to use the provider’s

computer systems. Here, the District Court declared that the actual coding of the services was the

property of the plaintiff. While it does not relate to governmental intervention, it establishes that

any sort of website created by a private company is not necessarily open to the public and

certainly does not fall under the definition of a traditional public forum.

Further, in American Online, Inc. v. IMS, et al., 24f.Supp.2d 548 (1998) the Courts found

that AOL was allowed to deny access to third parties using their servers to send mass spam

messages despite the economic benefits to these parties. They held that these online networks

were defined as the “chattel” of AOL and found that the sending of spam violated the common

law tort of trespass. Further, they found that the spam in AOL that used the company's trademark

violated the Lanham Act of 1946. Clearly, these Courts found that the online network possessed

by AOL was its property and thus was subject to certain entitlements that came with private

property. This precedent demonstrates that social media networks are not public forums but

rather privately owned enterprises in which the owners are empowered to regulate content

published on them.
 2. CONTENT BASED RESTRICTIONS ON SOCIAL MEDIA DO NOT VIOLATE

THE 1ST AMENDMENT

Now, numerous cases have also consistently shown that private corporations are entitled

to certain rights of the constitution such as the right to reject service and the right to monitor

behavior. The case of Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston Inc.

515 U.S. 557 (1995). When the South Boston Allied War Veterans’ Council hosted a parade

through the city of Boston, the Irish American Gay, Lesbian, and Bisexual Group of Boston

asked for a place in the parade to celebrate the Irish heritage as gay, lesbian, and bisexual

individuals. When the Council refused, the Massachusetts State Court sent a mandate which

demanded the Veterans’ Council allow the GLIB to attend as doing otherwise would violate the

state’s law that forbade “discrimination or restriction on account of … sexual orientation.” The

state also argued that the parade was a public demonstration and that excluding the GLIB

violated the group’s 1st amendment rights. Initially, the Council allowed the GLIB to participate

but the following year they rejected the city’s funding and again pushed to exclude the group

from their event. The Supreme Court ruled that such a mandate violated the 1st amendment

rights of the Boston Veterans’ Council as despite the public nature of the parade, it was still

organized to convey a message that did not align with the GLIB. (you can add more here if your

page count is low) The Court was concerned that anyone seeing the parade would associate the

flags and celebrations of the GLIB to align with the Boston Veterans’ Council, similar to the way

that Meta is afraid that its users may interpret unfacilitated speech as their own. The Court ruled

that the Council could reject the GLIB from participating in their parade This sets the precedent

that private-sector organizations have the right to deny participation to members whose messages

do not align with the value of the organization.

 The Florida law also can be argued to be violating the 1st amendment right to freedom of

the press through the precedent established in Miami Herald Publishing Company v. Tornillo.,

418 U.S. 241 (1974). Pat Tornillo was running for the Florida House of Representatives in Dade

County and the Miami Herald published two articles discouraging voters from supporting

Tornillo. Tornillo sued under Florida Statute Section 104. 38, which claimed that those cited in a

press’s editorial possessed the right to have their response published in the same press material.

The Court deemed the “right to reply” statute unanimously unconstitutional as they

acknowledged it could harm the press as any form of government intervention will intrinsically

chill editors who may decide that they would rather avoid controversy than deal with actions

against them from the State. The Court established here that a state cannot force a newspaper to

grant space to certain members of the public which supports the argument that the First

Amendment protects the editorial discretion and content-based restrictions by private entities. If

it did there, it should here as Meta and its subsidiaries function similarly in their mission of

publishing content for the public to examine.

This is not the first time the government has stepped in and failed to regulate the Internet.

The case of Ashcroft v. American Civil Liberties Union., 542 U.S. 656 (2004) regarded the Child

Online Protection Act which was created to prevent minors from viewing online pornography.

The American Civil Liberties Union and other publishers sued that the Act violated the freedom

of speech clause. Here the Court determined the act was unlawful as it should be up to the

individual parents to adopt Internet filters just as it should be up to the individuals to find a space

that would allow for speech that Meta disallows. The act was deemed unconstitutional as it was

too restrictive to the pursuers of the internet, just as this law in question is.
 In addition, the ruling in Reno v. ACLU 521 U.S. 844 (1997) found that the 1996

Communications Decency Act which criminalized the intentional pushing of obscene or indecent

content as well as the transmission of information found that the government’s Communications

Decency Act placed an overwhelming burden on a large majority of internet speech. The Court

found that the censorship within the CDA, meant to protect minors from obscene material, was

restricting online publishers from posting content that all American adults constitutionally have a

right to receive. The Act’s language was found to be overly broad and not narrowly tailored

enough to allow for the constitutional exchange of information that this Act was only meant to

keep away from minors. While these overbroad parts of the CDA were deemed unconstitutional,

Section 230 of the Act actually allows users, not government agencies, to regulate content posted

within an Internet forum, stating that “it is the policy of the United States… to preserve the

vibrant and competitive free market that presently exists for the internet, unfettered by Federal or

State regulation”. Due to this, only Meta and its subsidiaries, not the government, can decide

what content is readily accessible on the platforms.

Another instance of precedent disallowing the government to regulate the operations of a

private entity can be found in the case of National Institute of Family and Life Advocates v.

Becerra 585 U.S. __ (2018) when California passed the Reproductive Freedom, Accountability,

Comprehensive Care, and Transparency Act of 2015. The law in question targeted crisis

pregnancy centers whose purpose was to discourage women from considering terminating their

pregnancies. The Act required that these centers provide a very specific notice disclaiming that

these facilities were not endorsed by the state and did not possess the necessary licensing to be

considered medical providers. NIFLA sued claiming that their freedom of speech and freedom to

exercise rights were being violated by the Act. The Court ruled in favor of NIFLA and remanded
the case back down to the lower courts with the understanding that the “FACT” Act targeted the

speaker rather than the speech and that the requirement was not correlated to the State’s

informational interest through its compelling speech. Consistently the Court has ruled that the

government cannot compel private entities to carry certain messages or content and this is

entirely applicable to the Meta case at hand.

This concept is also found in the case of Bethel School District No. 403 v. Fraser 478

U.S. 675 (1986) where teenager Matthew Fraser gave a speech during the school’s class council

Presidential election nominating his friend for the position of class council Vice-President. The

speech was lewd and littered with several sexual innuendos so Matthew was promptly suspended

for two days. Fraser sued and claimed his 1st Amendment right to freedom of speech was

violated, though the Court felt otherwise as they felt the institution had the right to take steps

monitoring vulgar and lewd speech as such content was not consistent with the “fundamental

values of public school education.” The Court ruled in favor of the organization incorporating

content-based speech restrictions to allow the organization to fulfill its purpose. There should be

no differentiation in how organizations are allowed to place content-based speech restrictions if it

is congruent with allowing them to fulfill their mission. Part of Meta’s mission on their company

website is to “build a connection and community,” to “keep people safe and protect privacy,” and

to “promote economic opportunity.” As stated above, if Meta is disallowed from regulating the

speech posted by its users, rampant misinformation and hate speech will be allowed to share a

space with the other positive speech that Meta is trying to facilitate. It serves the advanced

economic interests of Meta as well, as advertisers will refuse to have their company name and

logo displayed alongside speech incongruent with its values. If schools are allowed to stop

speech contradictory to their mission, Meta should be allowed to do the same.

 The last instance of this argument of government intervention being declared

unconstitutional under the freedom of speech can be found in the case of Neal R. Wooley v.

George Maynard., 430 U.S. 705 (1997). The State of New Hampshire had a law requiring all

vehicles to bear license plates embedded with the state motto “Live Free or Die.” George

Maynard, a Jehovah's Witness believed the motto to contradict the values of his moral, religious,

and political beliefs and received a traffic ticket after obscuring the motto on his car. The Court

decided that the New Hampshire law requiring citizens to have the state’s motto on their license

plate mandated citizens to use their property as a “mobile” billboard for the state. This was held

to be unconstitutional as under the 1st Amendment citizens have the right to “refuse to foster an

idea they find morally objectionable.” This clearly illustrates the concept that private entities are

not constitutionally obligated to facilitate or hold speech on their bodies or platforms that the

government mandates them to do. There is no lawful difference between Maynard’s ownership

of his car and Meta’s ownership of its social media platform and thus should not be subject to a

law that forces them to host content that they vehemently disagree with.

The consequences of this law are immeasurable and will lead to much damage to the

validity of user content on Meta and the revenue it generates from advertising. This law should

be viewed under the lens of the strict scrutiny test as according to the precedents provided Meta

and the other social media platforms are both the technical and legal owners of their platform and

are akin to other press-related publication companies. Conducting a speech analysis finds that the

government is forcing these corporations (which are not traditional public forums) to host speech

that they would otherwise be able to regulate under their right of editorial control and their right

to refuse service. The government does not have a compelling interest to force the plaintiffs to

serve as a public forum as they have the resources, capabilities, and access to the internet to
develop one themselves. Further, the law clearly fails to be narrowly tailored enough to not

haphazardly infringe on Meta and the other corporation’s 1st Amendment rights of speech,

association, and press. If this law is not struck down, it creates a dangerous precedent that would

harm the economic interests of the United States and the Internet as a whole.

For the foregoing reasons, the Florida statute Fla. Stat. § 106.072 should be struck down

and the Court of Appeals decision overturned.

Respectfully submitted,

JD
REFERENCES

Cases

Ashcroft v. American Civil Liberties Union

https://content.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2004637453&

pubNum=708&originatingDoc=I856b2a1dcd5511ddb5cbad29a280d47c&refType=RP&originat

ionContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)&firstPage=t

rue

American Online, Inc. v. IMS, et al.

https://law.justia.com/cases/federal/district-courts/FSupp2/24/548/2516975/

Bethel School District No. 403 v. Fraser

https://content.next.westlaw.com/Document/Ic1d27f119c1e11d991d0cc6b54f12d4d/View/FullText

.html?transitionType=Default&contextData=(sc.Default)

CompuServe Inc. v. Cyber Promotions, Inc.

https://law.justia.com/cases/federal/district-courts/FSupp/962/1015/2311429/

Burwell v. Hobby Lobby

https://www.jstor.org/stable/10.1086/681003

Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston Inc.

https://content.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1995130182&

pubNum=708&originatingDoc=Id0e4bf33372511d986b0aa9c82c164c0&refType=RP&originati

onContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)

Jackson v. Metropolitan Edison Co.

https://supreme.justia.com/cases/federal/us/419/345/

Manhattan Community Access Corp v. Halleck

https://www.supremecourt.gov/opinions/18pdf/17-1702_h315.pdf

Miami Herald Publishing Company v. Tornillo

https://supreme.justia.com/cases/federal/us/418/241/

National Institute of Family and Life Advocates v. Becerra

https://www.supremecourt.gov/opinions/17pdf/16-1140_5368.pdf

Reno v. ACLU

https://content.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2000386806

&originatingDoc=I31878bba9c2511d9bdd1cfdd544ca3a4&refType=RP&originationContext=do

cument&transitionType=DocumentItem&contextData=(sc.DocLink)

Turner Broadcasting System Incorporated, et al., Appellants v. Federal Communications

Commission et al.

https://content.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1994136435&

pubNum=708&originatingDoc=I1d1ced249c9711d993e6d35cc61aab4a&refType=RP&originat

ionContext=document&transitionType=DocumentItem&ppcid=3bccbe78d2dc4a94bac4e683828

a2777&contextData=(sc.DocLink)

Wooley v. Maynard

https://www.google.com/search?q=Wooley+v.+Maynard+westlaw&rlz=1C1VDKB_enUS1005U

S1056&oq=Wooley+v.+Maynard+westlaw&gs_lcrp=EgZjaHJvbWUyBggAEEUYOTIHCAEQIR

igATIHCAIQIRigATIHCAMQIRigATIHCAQQIRigATIHCAUQIRigAdIBCDQyNTVqMGo0qAIAs

AIA&sourceid=chrome&ie=UTF-8

Statutes

Cable Television Consumer Protection and Competition Act

https://www.congress.gov/bill/102nd-congress/house-bill/4850
Communications Decency Act

https://www.congress.gov/bill/104th-congress/senate-bill/314

Children’s Online Privacy Protection Act

https://www.ftc.gov/legal-library/browse/statutes/childrens-online-privacy-protection-act

Religious Freedom Restoration Act

https://www.congress.gov/bill/103rd-congress/house-bill/1308

Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB775

The Patient Protection and Affordable Care Act

https://www.congress.gov/bill/111th-congress/house-bill/3590

Trademark Act

https://www.uspto.gov/sites/default/files/trademarks/law/Trademark_Statutes.pdf

Other Authorities

Yale Law Journal “Hobby Lobby and the Dictionary Act”

https://www.yalelawjournal.org/forum/hobby-lobby-and-the-dictionary-act