Musk is entitled to order disclosures like 'The Twitter Files.' Are states?

An image of Elon Musk is seen on a smartphone placed on printed Twitter logos in this picture illustration taken April 28, 2022. REUTERS/Dado Ruvic/Illustration/File Photo
  • 11th Circuit Decision
  • NetChoice, L.L.C. v. Paxton
  • Netchoice v. Moody Cert Petition for filing
  • Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio
  • NetChoice Cross Petition

(Reuters) - As the owner of a private social media company, Elon Musk is entitled to reveal whatever he wants about Twitter Inc’s editorial decisions. If he wants to throw open Twitter’s files, as he apparently did to journalist Matt Taibbi last week, to reveal the company’s internal deliberations over tweets related the New York Post’s 2020 report on Hunter Biden’s laptop, that’s Musk's prerogative.

Whether government authorities can mandate such disclosures about social media companies’ content moderation is a different story.

The U.S. Supreme Court will almost certainly hear part of the story next year, in a case in which internet coalition NetChoice LLC is challenging Florida’s law prohibiting large social media companies from restricting certain political speech.

In May, as you probably recall, the 11th U.S. Circuit Court of Appeals upheld a preliminary injunction barring enforcement of most provisions of Florida's law. The appeals court concluded that most of the law's requirements – including a mandate that big social media platforms such as Twitter, Facebook and YouTube disclose their reasoning for removing particular posts – likely violated the 1st Amendment.

Florida and NetChoice agree that the Supreme Court should weigh in on the statutory provisions that the 11th Circuit deemed unconstitutional. Considering that the 5th Circuit reached contrary conclusions in September about the constitutionality of a very similar Texas law, it’s safe to assume that the Supreme Court will grant Florida's petition requesting review of the requirements found to be unconstitutional, including the state's mandate for social media sites to disclose their rationale for blocking particular content.

But there’s no guarantee that the justices will also look at states’ right to impose seemingly less burdensome disclosure mandates, such as a requirement that social media sites publish their content moderation policies and notify users when those policies change. The 11th Circuit ruled that such requirements are not overly burdensome and are otherwise permissible under Supreme Court precedent from Zauderer v. Office of Disciplinary Counsel, which upheld state regulations on advertising by a plaintiffs lawyer.

NetChoice’s counsel, Paul Clement of Clement & Murphy, has asked the justices to consider all of the Florida law's disclosure mandates, not just the requirements dinged by the 11th Circuit, because the entire law is purportedly tainted by Florida lawmakers’ “viewpoint discrimination” against platforms they consider to be insufficiently conservative.

Even seemingly innocuous requirements, such as the demand, that sites publish their content moderation policies, NetChoice said, “intrude deeply into editorial judgments and decisions about how to explain those judgment, both of which are constitutionally protected.”

Florida filed its opposition to NetChoice’s cross-petition right before Thanksgiving. It argues, among other things, that there's no circuit split for the Supreme Court to resolve because the 5th Circuit reached the same conclusion as the 11th Circuit on states’ rights, under Zauderer, to require modest disclosures from social media platforms. Florida also accused social media sites of trying to block the disclosure requirement so they can “conduct [their] abuses in darkness.”

To be sure, the controversy over whether governments can compel social media companies to disclose anything at all about their editorial policies is not as freighted as the sweeping question of whether governments are entitled to regulate content moderation by social media platforms. After all, as the 5th Circuit said in its decision upholding Texas’s law, the platforms already disclose content moderation policies, to one degree or another, so the law isn’t asking for much more than the sites already provide voluntarily.

Even NetChoice does not contend that the Florida disclosure requirements upheld by the 11th Circuit will wreak the havoc it has predicted from the law’s interference with platforms’ editorial decision-making. (Florida and Texas have denied that their laws will have such a dire impact on internet content. Last spring the Supreme Court nevertheless blocked enforcement of the Texas law to preserve the status quo during additional litigation.)

NetChoice counsel Clement did not respond to my query on the significance of the disclosure issue. A representative for Florida Attorney General Ashley Moody also did not respond.

But in an interesting amicus brief backing NetChoice’s cross-petition, law professor Eric Goldman of Santa Clara University School of Law argued that even seemingly modest government-mandated disclosures are a matter of grave constitutional concern. Unless the Supreme Court clarifies that governments cannot compel social media sites to disclose anything about their editorial processes, Goldman said, states will accelerate their adoption of what he describes as “intrusions” that would never be permitted in the context of traditional publishing.

Like NetChoice, Goldman argued that the 11th Circuit should not have used the Zauderer test to evaluate state disclosure requirements. Zauderer, he said, merely required an attorney who chose to advertise to include “purely factual” information about contingency fees to assure that consumers would not be deceived. Florida’s law, which does not address advertising by social media platforms, would require the companies to create and disseminate certain new information about, for instance, user engagement with blocked posts, Goldman said.

More fundamentally, he argued, social media platforms’ editorial standards are not as simple and straightforward as the compelled disclosure in the Zauderer case. “Pick virtually any controversial content category — such as ‘hate speech’ or ‘privacy invasions’ — and the publisher’s policies are complex, nuanced, rapidly evolving and based on substantial human judgment,” Goldman said.

The big risk, if states are allowed to mandate disclosures of what may be fluid editorial policies, is that partisans will launch investigations on the pretext that social media sites failed to meet disclosure standards or else violated their own policies, Goldman said. That threat, he said, may come from either political flank: conservative state attorneys general from Florida or Texas or progressive AGs from New York and California, which also mandate certain disclosures from social media sites.

Again, none of this affects internet companies’ voluntary disclosures — nor, for that matter, consumers’ consideration of such disclosures in deciding whether to use any particular site. But I think NetChoice and Goldman make a good case that state disclosure mandates, at the very least, deserve the Supreme Court’s attention.

Read more:

Florida asks U.S. Supreme Court to revive law targeting social media 'censorship'

U.S. Supreme Court blocks Texas law restraining social media companies

If Supreme Court lets Texas censor law proceed, internet will be a cesspool. Or not.

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.