Florida Steps Up To Defend Its Unconstitutional Social Media Law And It's Every Bit As Terrible As You'd Imagine

Free Speech

from the discredited-nonsense-cited dept

About a month ago, the governor of Florida signed a showboating bill into law — one that made it illegal to deplatform people running for office. Well, mostly. It exempted “theme park-associated” websites from the bill to appease the state’s Disney overlords, but subjected every other site accessible in Florida to First Amendment violations in the form of compelled speech.

The absurdly unconstitutional bill was immediately challenged. NetChoice and CCIA beat everyone else to the courthouse, suing the state to block the law from being enforced. The plaintiffs pointed out the obvious flaws in the bill, as well as its hypocritical exemption of Disney sites from enforcement. It also pointed out this new law was nothing more than performance art that used both the First Amendment and Section 230 as expendable foot soldiers in Governor Ron DeSantis’ war on imagined anti-conservative bias. The following is from NetChoice/CCIA’s request for an injunction:

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.” 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.”

The state has filed its response [PDF] to CCIA/NetChoice’s challenge of the law’s constitutionality. And it’s just as dumb and wrongheaded as the law that made the state’s courtroom presence necessary.

It starts out awful and only gets worse from there.

After years of unprecedented growth by social media platforms, Florida enacted a first-of-its-kind consumer protection law, Senate Bill 7072 (the “Act”), which takes aim at unfair and deceptive business practices by these platforms. The public record is replete with instances of their arbitrary and bad faith content moderation, only some of which are documented in the appendix to this brief. Moreover, the social media behemoths’ power to silence both on their platforms and throughout society has given rise to a troubling trend where a handful of corporations control a critical chokepoint for the expression of ideas. Such unprecedented power of censorship is especially concerning today, when most individuals use social media to obtain their news and government officials harness such mediums to reach the public. The Act seeks to rein in abuse of this power and ensure the widespread dissemination of information from a multiplicity of sources—a governmental objective of the highest order that promotes values central to the First Amendment.

So, it’s a “consumer protection law” that only protects people running for office from “tech giants” and only if those “tech giants” aren’t Disney or Universal or anyone else who might own a theme park in Florida. That sets the stage for the immense amount of stupidity readers (and the court) will be subjected to.

The immense amount of stupidity arrives in the very next sentence.

In seeking the extraordinary remedy of a pre-enforcement preliminary injunction, Plaintiffs ask the Court to grant them a First Amendment right to disable Florida from even starting the work of preserving the First Amendment rights of its citizens through this law.

Forcing websites to carry users’ content is the exact opposite of “preserving First Amendment rights.” Sites refusing to carry certain users’ content is exactly the First Amendment. When a private company says take your content elsewhere, no one’s First Amendment rights are violated.

Dumb, meet dumber.

The law merely prevents online platforms from using their vast powers to distort and suppress the messages of those speakers, leaving platforms free to speak with their own voices and largely free to adopt terms of service as they wish, requiring only that they enforce those terms consistently.

It takes an amazing amount of cognitive dissonance to say that forcing platforms to carry content leaves them “free to speak with their own voices.” If a platform says “this content sucks and we won’t be its conduit” and the government says “you must carry this content you feel sucks,” the platform is forced to speak in the government’s voice, rather than its own.

And as for “enforce terms consistently,” there’s a Pandora’s box of subjective interpretation no one should willingly want to open. Case in point, Governor DeSantis’ best buddy — former president Donald Trump — routinely violated the Twitter Rules but Twitter left his tweets up because he was the nominal leader of the free world and his tweets were considered newsworthy and of public interest. Had Twitter enforced its terms of use consistently, Trump would have been perma-banned long before he actually was.

Dumber and dumber and dumber:

Indeed, given the massive power that social media companies wield over the speech of their users, Florida’s efforts to prevent them from suppressing the speech of Florida’s citizens is little different from traditional common carrier regulation long thought to be constitutionally permissible.

Oh, this bullshit argument again. Trying to equate Facebook with AT&T is a non-starter. Common carriers do not prevent users from saying whatever they want. But neither do they provide platforms for speech that can reach any other user who uses the same service. Common carriers do not moderate content because they are not in the user-generated content business. They are the streets, to use an overused analogy. They are not the billboards alongside the road.

Just brain embolism-triggering levels of stupidity.

Nor is the Act preempted by Section 230 of the Communications Decency Act; Plaintiffs grossly overread that provision as establishing a law-free zone over the entire Internet, even where the regulation in question would promote rather than restrict free expression.

What the fuck is this word salad. Section 230 simply allows companies to make moderation decisions without worrying about being sued for content created by users, whether the content stays up or is taken down. The immunity was added to the Communications Decency Act to encourage active moderation of user-generated content. And, once again, the “regulation in question” does nothing to “promote free expression.” What it actually does is allow the Florida government to determine what content platforms must carry.

That’s just the first two pages of the 61-page response. But it’s enough to show how badly the state is misunderstanding both the First Amendment and Section 230. And the rest of the response shows how deliberately the state is misunderstanding both of these issues.

Here’s just one example of the disingenuousness of the state’s arguments, pulled from First Amendment lawyer Ari Cohn’s two detailed Twitter threads about the state’s response. Here’s the state’s statement in its response:

To be sure, some courts have read Section 230(c)(1) to confer immunity whenever an interactive computer service exercises any of a publisher’s “traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content.”

Here’s Cohn’s acidic response to the state’s attempt to portray the issue as unsettled:

To be sure, saying “some courts” is a clever way to try to minimize “damn near all of them.” But that’s not going to fool the court. At the end of the day, 230(c)(1) applies to the editorial discretion to post or remove content.

And if you can’t find enough to work with in Cohn’s twin threads (one for the First Amendment and one for Section 230), click on over to Eric Goldman’s website where he breaks down thirty-one bogus assertions by Florida’s government and provides counterpoints and counterarguments for every single one of them.

This is bad legislating compounded by bad lawyering. But, to be fair to the lawyers, they’re being paid to advance the state’s agenda, even when the state is so clearly in the wrong that only those dying of Kool Aid-enabled cyanide poisoning think these arguments have merit. Compounding the wrongness of the law is the state legislators’ decision to create a carve out for companies they wish to appease, which clearly indicates this isn’t about equal protection for political hopefuls but rather a way for DeSantis and his buddies to punish tech companies for their perceived bias.

Filed Under: 1st amendment, content moderation, florida, social media
Companies: ccia, netchoice