First Legal Challenge To Florida's Unconstitutional Social Media Moderation Law Has Been Filed

from the and-we're-off dept

On Monday we noted that Florida Man Governor Ron DeSantis had signed into law the new blatantly unconstitutional social media content moderation bill, complete with its extra corrupt Mickey Mouse exemption for (Disney) companies who own (Disney) theme parks.

Of course, it’s one thing to just note that the bill is unconstitutional and another thing altogether to go through the annoyingly stupid process of proving that the bill is unconstitutional. Now, NetChoice and CCIA have stepped up to the plate and filed the first legal challenge to the bill (as first noted by USA Today who failed to link to the complaint).

The 70 page complaint is pretty impressive to read. The (somewhat long in its own right) Overview highlights the myriad problems in the bill. Here are just the first few paragraphs of the overview, to give you a sense of where the complaint is going.

The Act, a first-of-its-kind statute, was enacted on May 2, 2021 and signed into law on May 24, 2021 to restrict the First Amendment rights of a targeted selection of online businesses by having the State of Florida dictate how those businesses must exercise their editorial judgment over the content hosted on their privately owned websites. The Act discriminates against and infringes the First Amendment rights of these targeted companies, which include Plaintiffs? members, by compelling them to host?and punishing them for taking virtually any action to remove or make less prominent?even highly objectionable or illegal content, no matter how much that content may conflict with their terms or policies.

These unprecedented restrictions are a blatant attack on a wide range of content-moderation choices that these private companies have to make on a daily basis to protect their services, users, advertisers, and the public at large from a variety of harmful, offensive, or unlawful material: pornography, terrorist incitement, false propaganda created and spread by hostile foreign governments, calls for genocide or race-based violence, disinformation regarding Covid-19 vaccines, fraudulent schemes, egregious violations of personal privacy, counterfeit goods and other violations of intellectual property rights, bullying and harassment, conspiracy theories denying the Holocaust or 9/11, and dangerous computer viruses. Meanwhile, the Act prohibits only these disfavored companies from deciding how to arrange or prioritize content?core editorial functions protected by the First Amendment?based on its relevance and interest to their users. And the Act goes so far as to bar those companies from adding their own commentary to certain content that they host on their privately owned services?even labeling such commentary as ?censorship? and subjecting the services to liability simply for ?post[ing] an addendum to any content or material posted by a user.?

Under the Act, these highly burdensome restrictions apply only to a select group of online businesses, leaving countless other entities that offer similar services wholly untouched by Florida law?including any otherwise-covered online service that happens to be owned by The Walt Disney Company (?Disney?) or other large entities that operate a ?theme park.? This undisguised singling out of disfavored companies reflects the Act?s true purpose, which its sponsors freely admitted: to target and punish popular online services for their perceived views and for certain content-moderation decisions that state officials opposed?in other words, to retaliate against these companies for exercising their First Amendment rights of ?editorial discretion over speech and speakers on their property.? Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1931 (2019).

Rather than preventing what it calls ?censorship,? the Act does the exact opposite: it empowers government officials in Florida to police the protected editorial judgment of online businesses that the State disfavors and whose perceived political viewpoints it wishes to punish. This is evident from Governor Ron DeSantis? own press release that touts the Act as a means to ?tak[e] back the virtual public square? from ?the leftist media and big corporations,? who supposedly ?discriminate in favor of the dominant Silicon Valley ideology.?2 The Governor?s press release also leaves no doubt about the Legislature?s unconstitutional viewpoint discrimination: quoting a state legislator, it proclaims that ?our freedom of speech as conservatives is under attack by the ?big tech? oligarchs in Silicon Valley. But in Florida, [this] ? will not be tolerated.?

Although the Act uses scare terms such as ?censoring,? ?shadow banning,? and ?deplatforming? to describe the content choices of the targeted companies, it is in fact the Act that censors and infringes on the companies? rights to free speech and expression; the Act that compels them to host speech and speakers they disagree with; and the Act that engages in unconstitutional speaker-based, content-based, and viewpoint-based preferences. The legislative record leaves no doubt that the State of Florida lacks any legitimate interest?much less a compelling one?in its profound infringement of the targeted companies? fundamental constitutional rights. To the contrary, the Act was animated by a patently unconstitutional and political motive to target and retaliate against certain companies based on the State?s disapproval of how the companies decide what content to display and make available through their services.

The Act is a frontal assault on the First Amendment and an extraordinary intervention by the government in the free marketplace of ideas that would be unthinkable for traditional media, book sellers, lending libraries, or newsstands. Could Florida require that the Miami Herald publish, or move to the front page, an op-ed or letter to the editor that the State favored, or demand that the Herald publish guest editorials in a state-sanctioned sequence? The answer is obviously no?as the Supreme Court unanimously held five decades ago in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). Yet the State now seeks to repeat that history?and to go even further by, for example, compelling the targeted companies to alter and disclose their editorial standards and to provide ?detailed? information about the algorithms they use to curate content.

There’s more, but that gives you the basics right there. My guess is that Florida will challenge the standing of the two groups bringing the complaint, saying that they are not directly harmed by the bill, even if their members are. So the first fight is likely to be over the question of whether or not these trade groups are adequate stand-ins for their members. Hopefully the court recognizes that, but standing questions (as boring as they are) often become a big deal in cases like this one.

The full complaint digs deep to highlight the many, many, many unconstitutional issues with the bill, including some I had missed on my earlier readings. For example, I didn’t realize that the bill creates a new “Antitrust Violator Vendor List” but then makes it so it only can apply to social media companies (that don’t own a theme park).

Section 3 is another example of the Act?s irrational targeting of a select, disfavored group of online businesses. Although federal antitrust laws?and Florida?s counterpart statutes?apply across different industries, Section 3 irrationally singles out only the defined ?social media platforms? for disfavored treatment because of their role in hosting and moderating online content. Id. Section 3 establishes an ?Antitrust Violator Vendor List? of companies and individuals subject to an absolute contracting bar with the State of Florida. Id. (adding ? 287.137(3)(b)). These persons and affiliates are also prohibited from receiving ?economic incentives? such as ?state grants, cash grants, tax exemptions, tax refunds, tax credits, state funds, and other state incentives? under Florida law…

The Antitrust Violator Vendor List may include those merely ?accused of? violations by the Florida ?Attorney General,? ?a state attorney,? or federal authorities (subject to a cumbersome and inadequate process for contesting the Attorney General?s decision before a state administrative law judge). The Act empowers the Florida Attorney General to place an accused company ?temporarily? on the Antitrust Violator Vendor List upon a finding of mere ?probable cause that a person has likely violated the underlying antitrust laws.? Id. (adding ? 287.137(3)(d)(1)). The absolute state contracting bar extends to an ill-defined group of officers, directors, shareholders, and even employees involved in ?management? of a company placed on the List, as well as a broad group of ?affiliates? of companies that are permanently placed on the List.

Given the long list of cases that have established that allowing government officials to punish companies based on their speech is a 1st Amendment violation, this clause alone seems highly suspect. As the complaint later notes:

The Act is a smorgasbord of constitutional violations.

In the end, the main claims are saying that the bill violates both the 1st and 5th Amendment (and by association the 14th Amendment, which is what establishes that state governments are as bound to the Constitution’s limitations as the federal government is). The 5th Amendment claims have to do with due process:

The Act violates due process because it fails to provide fair warning of what conduct is being regulated. FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012). A law is unconstitutionally vague when people ?of common intelligence must necessarily guess at its meaning,? Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926), or where the law lacks definite and explicit standards thereby encouraging ?arbitrary and discriminatory? application, Kolender v. Lawson, 461 U.S. 352 (1983).

There’s also an expected Commerce Clause claim, basically saying that this is an issue that only the federal government can regulate, since it’s regarding interstate commerce. And, finally, a claim that this pre-empted under both the Supremacy Clause and Section 230 itself, which has always been clear that it pre-empts any state attempt at regulating content moderation.

It’s a good, strong complaint, and if these organizations can get over the standing hurdle, it seems to have a strong chance of success. And that’s because of just how blatant the unconstitutional aspects of the bill truly are. Of course, DeSantis and others in the Florida government were warned of all this before, and they now need to throw a ton of taxpayer money at defending their own unconstitutional culture war. And, somewhat ridiculously, many of DeSantis’ biggest fans will simply love the fact that he’s wasting their money this way.

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Companies: ccia, netchoice

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Comments on “First Legal Challenge To Florida's Unconstitutional Social Media Moderation Law Has Been Filed”

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62 Comments

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That Anonymous Coward (profile) says:

Its only because we are conservatives who love the Constitution*!!!!

    • well what we think it says, we’ve never read it and we’re pretty sure its only to be used against those commie liberal bastards who are trying to stop us.

We small government conservatives, now let us make this massive political boondoggle to allow our government to be in control.

On a side note this also proves another TAC Truth.
Humans love to stuff more & more things into labels rendering them useless.
The left trying to add microagressions & ‘eye rape’ to the definition of rape.
The right turning ‘conservative’ into a catch all for right wing and Q insanity wrapped up in the prosperity gospel of things Jesus never said claiming they follow the teachings while refusing to live those teachings they demand everyone adhere to.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re:

The left trying to add microagressions & ‘eye rape’ to the definition of rape.

Do you have a citation for this? I’m a leftist and I’ve not heard of anyone trying to do this, especially since rape is a legal term and you couldn’t easily add microaggressions or eye rape to a statute about physical acts of rape.

This comment has been deemed insightful by the community.
TaboToka (profile) says:

If only laws were like capital projects

Bills should have some required sections (filled out by the State’s OMB), such as:

  • Expected cost of implementation
  • Potential litigation exposure
    • Likelihood of successful litigation
    • Cost if litigation is successful
  • Expected effect if bill is not enacted
  • Industries impacted by bill (pro/con)
This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: Re:

It’s the great hypocritical irony of arguments/bills like this, in that those attempting to defend fictional ‘rights’ like the ability to use the social media platform of choice whether or not it wants you there are more than happy to trample all over very real rights like association and editorial control over your own property.

This comment has been deemed insightful by the community.
TaboToka (profile) says:

Re: how quick

Like the article says, it will take time & $$$ to get through the courts, but it will eventually be ruled unconstitutional.

Is it possible this clown car of butthurt politicians doesn’t see the irony of celebrating right-wing darling Gay Cake Baker‘s "victory" and passing this new law?

This comment has been deemed insightful by the community.
That One Guy (profile) says:

I don’t feel any sympathy for those that are cheering this on having the tax dollars wasted defending a blatant violation of the constitution, they absolutely deserve to pay for their stupidity and contempt for the rights of others, I do however feel sorry for any sane people in the state who are going to end up funding that defense whether they like it or not.

This comment has been deemed insightful by the community.
David says:

The way the cookie crumbles...

Lincoln was on board with letting the Constitution’s words carry more meaning than the founders realized. Eisenhower was on board with taking the Supreme Court’s verdict about the Constitution’s words’ meaning.

But these days to be a Republican is to assign less meaning to the Constitution’s words than the founders intended, and who cares about the Supreme Court that has been too cowardly to declare Trump king?

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Anonymous Coward says:

Re: The way the cookie crumbles...

You obviously don’t understand the constitution. It says three things. The police can do what the fk they want at all times. Republicans can say what the fk they want, wherever they want. Whites can buy and use any weapon they want, carry them wherever they want and use them in imagined self-defense whenever they feel like it. Didn’t you learn anything at school?

Or at least, that’s how some Americans think their constitution reads. And seeing as other political parties don’t agree, they should be prevented from exercising power, whatever it takes to do so.

Anonymous Coward says:

Theme Parks in Florida!

One note, I had to look it up…

The April article mentioned it will not be long until you start seeing 25 acres (the minimum amount necessary) somewhere in Florida.

But one of the other parts of the theme park definition requires "and has a minimum of 1 million visitors annually." Do they have to be open a full year before they qualify? So, are they pro-rated? Can they be open for 30 seconds and have two visitors and thereby qualify?

Inquiring minds want to know!

telkis says:

Re: Theme Parks in Florida!

Florida SB 7072: Social Media Platforms

470 The term does not include any information service, system,
471 Internet search engine, or access software provider operated by
472 a company that owns and operates a theme park or entertainment
473 complex as defined in s. 509.013.

509.013

What I find pertinent:
(9) “Theme park or entertainment complex” means a complex comprised of at least 25 contiguous acres owned and controlled by the same business entity and which contains permanent exhibitions and a variety of recreational activities and has a minimum of 1 million visitors annually.

What makes this work is, own 25 acres property. Build a black obelisk in the center. Have primates in an enclosure around it with sticks, stones and other sights from the beginning of “2001: A Space Odyssey”. A web camera in the obelisk. You will have over 1 million visitors in close to a heartbeat.

Florida SB 509.013 really only talks about:
(3) “Guest” means any patron, customer, tenant, lodger, boarder, or occupant of a public lodging establishment or public food service establishment.

A guess a lawyer may have issues about the definition of the word “patron”.

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Anonymous Coward says:

So let Floridians decide...

Social media sites affected by the order should put some legalese in their updated ToS that essentially says something to the effect that the service cannot be used in Florida under penalty of law.

That coupled with a bit of geo-blocking might be a fun little experiment to watch.

Those that are affected by the ban can always take their conservative shit over to Disney.

telkis (profile) says:

Theme Parks in Florida!

Florida SB 7072: Social Media Platforms

470 The term does not include any information service, system,
471 Internet search engine, or access software provider operated by
472 a company that owns and operates a theme park or entertainment
473 complex as defined in s. 509.013.

509.013

What I find pertinent:
(9) “Theme park or entertainment complex” means a complex comprised of at least 25 contiguous acres owned and controlled by the same business entity and which contains permanent exhibitions and a variety of recreational activities and has a minimum of 1 million visitors annually.

What makes this work is, own 25 acres property. Build a black obelisk in the center. Have primates in an enclosure around it with sticks, stones and other sights from the beginning of “2001: A Space Odyssey”. A web camera in the obelisk. You will have over 1 million visitors in close to a heartbeat.

Florida SB 509.013 really only talks about:
(3) “Guest” means any patron, customer, tenant, lodger, boarder, or occupant of a public lodging establishment or public food service establishment.

A guess a lawyer may have issues about the definition of the word “patron”.

Glenn says:

The people of Florida elected these fools and criminals into office, so if their money is wasted by them and their criminal efforts, then good on them. They deserve what they elect. So, Florida: don’t like it? …vote better next time… or just vote period–if you didn’t vote and someone who actually cares about you didn’t get elected, then you’re still part of the problem.

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"There’s a lot of people who don’t want to understand section 230."

FTFY.

Humanity is not short on no-hope losers without education or brains. Every last moron out there wants 230 gone because these dimbulbs honestly believe that if it goes away they’ll finally make it big by screaming, their mouth being the only fully functioning asset they have left.

That’s not how it’ll work out, of course. If gentle-mannered liberals are going to have issues with 230 gone then thats nothing compared to what’ll happen to the alt-right asshole.

The very second 230 goes down Stormfront and Breitbart will have to close their forums. I must admit, that alone does count as a silver lining.

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Bruce C. says:

De Santis and other Trumpettes...

don’t really care if the law stands up. If they were to somehow win in the courts, the law would be there for them to use. If they lose in the courts, they follow standard Trumpette doctrine and blame the liberal, activist judges.

This comment has been deemed insightful by the community.
DannyB (profile) says:

How they define censorship

  1. For disfavored companies (Facebook, Twitter, Google, YouTube, etc), it is censorship to moderate content that violates the company’s TOS.

  2. For favored companies (Parler, Frank, Conservapedia) it is censorship to prevent those companies from moderating to protect us all from wrong-think leftist political views which fail to pwn-the-libs.

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restless94110 (profile) says:

The first few sentences

In the first few sentences of the complaint, the fools claim the Act infringes on the ability of the tech monopolies’ editorial judgment. Meaning they are admitting they are a publisher. Meaning 230 protection should be immediately revoked for all tech totalitarian monopolies. Oopsie.

If the schoolmarm dictators at big Tech were smart they’d lobby for public utility status and fire all moderators. Farmers need a lot of workers and so do chicken processing plants. All the insane modulators/monitors whatever the devils are calling themselves this week can go find useful work picking grapes and oranges.

However, if the tech monopolies want to continue to exercise editorial judgment? Great. No more 230 and then they can be sued into eternity by all of the Americans they’ve harmed by their un-American anti-Free Speech actions.

The idiocy of big tech censorship was illustrated perfectly this past week when Facebook had to stop banning the Wuhan lab theory of COVID. Logical and scientific thought is full of theories to be considered, not censored. I hope they win. Then let the lawsuits flood in. Can’t wait.

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Mike Masnick (profile) says:

Re: The first few sentences

In the first few sentences of the complaint, the fools claim the Act infringes on the ability of the tech monopolies’ editorial judgment. Meaning they are admitting they are a publisher. Meaning 230 protection should be immediately revoked for all tech totalitarian monopolies. Oopsie.

How can you read this site as often as you do and STILL not understand that Section 230 cannot be "revoked" and there is no "publisher/platform" distinction in the law?

You’re either purposely disingenuous or dumber than a rock.

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This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re:

So much wrong in one sentence.
1) The constitution limits the governments ability to control speech, and says nothing of anybody else, or any corporations ability to control speech on their property. Churches for instance, are corporations and can control speech on their property, including any websites they own.

2) Freedom of speech, and freedom of the press simply mean that the government cannot stop you publishing your own speech at your own expense, or prevent you from owning the means of publishing that speech. If you have to buy your own servers to publish your own speech, your freedom of speech is still intact.

Scary Devil Monastery (profile) says:

Re: Re:

"Which is more important in the words of the constitution: the protections of those who speak or the rights of private enterprise to not host speech they disagree with. "

The rights of private entities, always. Because the constitution only limits GOVERNMENT.

I’m sure this was covered in grade school civics. It’s not even one of the ambiguous passages. 1A clearly prohibits laws from being made which affect the rights of association.

"May the lord rights battle begin."

So in addition to being an illiterate moron unable to read the very brief constitution you guys have, you are a religious fanatic who never read the new testament either?

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Lostinlodos (profile) says:

Re: Re: Re:

Interpreting the constitution is what the courts do. Again: it will be interesting to watch. You and I are not judges. Our opinion doesn’t set law.
I’m happy this law was passed and it was chalk. Hopefully Florida looses and appeals so it can make it to the higher court system and the issue of State level law and 230 regulations:exemptions gets settled Nationally.

lord was a typo, I intended legal.
god doesn’t exist. If he does I look forward then to seeing my friends in hell. The only religious fanaticism I have is abolishing every list trace of it from every level of government.

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nasch (profile) says:

Re: Re: Re: Re:

the issue of State level law and 230 regulations:exemptions gets settled Nationally.

"Settled" implies a controversy where none exists. Federal law supersedes state law, and section 230 explicitly prohibits conflicting state law. So there is nothing to be settled.

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Scary Devil Monastery (profile) says:

Re: Re: Re:5 Re:

Not a very interesting one. You don’t need to be a lawyer to determine the constitutional conflict on this one anymore than you need to hold a PhD in Math to understand that 2+2=4.

The only thing to understand the below passage is basic english comprehension;

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Anonymous Coward says:

Re: Re: Re: Re:

How do you get from

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

to a law that forces companies to carry speech that they do not want to carry.

Also, AFAIK, the press was a direct reference to the printing press, and is therefore best interpreted as a means of publishing speech. Because printing press owners frequently compiled and printed news-sheets for their local area, the term transferred to the newspaper and latter all reporting. Freedom of the press can be argued as meaning the freedom to publish, at your own expense.

The Florida law has another flaw, if somebody takes the steps necessary to stand for public office, they can say whatever they want on any social media platform, and their speech cannot be taken down, which is a gift to those promoting extremist policies and spammers.

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"The only religious fanaticism I have is abolishing every list trace of it from every level of government."

That’s weird because your arguments are those of a zealous fanatic, not those of a rational person. If you want to change that, not taking the talking points of the alt-right at face value would be a start.

"Interpreting the constitution is what the courts do. Again: it will be interesting to watch. You and I are not judges. Our opinion doesn’t set law. "

That is correct, but very little interpretation is needed for this one since 1A is pretty much ramming it into the ground from the get-go. It’s as self-evident as that passage starting with "we the people".

"…and 230 regulations:exemptions gets settled Nationally. "

You DO realize that government compelling private entities right of association and speech is the only outcome of such an exemption, right?

So once again from the top; The constitution states that government may not deprive private entities of freedom of speech and freedom of association and assembly.

Hence the bar or platform owner is still free to dictate the terms which apply on their own property.

The alternative you pose, no matter the shape or form, abolishes that part entirely with the state seizing the means of production and compelling speech.

You should realize you’ve gone off the deep end when the "cure" you envision for a dreamed-up "problem" comes straight out of The Communist Manifesto while still claiming right-wing political adherence.

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Lostinlodos (profile) says:

Re: Re: Re:6 Re:

Given I’m alive and typing I quite obviously didn’t inject bleach like the ABC reporter said after the report. A fake story that was spread across Twitter by far left liberal progressive activists. Trump said. A fake story that then spread across mainstream media with zero fact checking.
A story so throughly debunked it went from Trump said to Trump implied to Trump was careless in discussion.

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