Florida Tells Court: Actually, It's Section 230 That's Unconstitutional (Not Our Social Media Law)

from the florida-man-does-florida-man-things dept

As you’ll recall, Florida’s social media bill was declared unconstitutional by a federal judge a couple weeks ago. The state has already moved to appeal that decision, so we’ll have to see how the judges on the 11th Circuit feel about all of this. However, apparently the case in the lower court is still moving forward in some way (I had assumed that after the preliminary injunction and appeal that the case would be stayed until the appeal was decided, but apparently not? Understanding civil procedure is an impossibility).

Earlier today Florida filed its response to the lawsuit, which is… not much. It’s basically this sentence over and over again:

This paragraph contains legal conclusions that do not require a response. Defendants deny any remaining allegations in this paragraph.

I count 142 such statements (roughly). When you get down to the defenses, they toss out a bunch, but the one that caught my attention is their sixth defense:

Insofar as 47 U.S.C. ? 230 would render all or any portion of the Act unconstitutional, 47 U.S.C. ? 230 is invalid and in violation of the First Amendment, the Tenth Amendment, and the principle of federalism.

The issue here is that while the law has been put on hold for violating the 1st Amendment, one of the other arguments is that even if it were constitutional (which it is not), it would be pre-empted by Section 230. We’ve discussed this in the past. Section 230 makes it clear that states cannot contravene federal law regarding moderation and if they do they’re pre-empted. So, to counter that, Florida is now doing a “it’s not our law that’s unconstitutional, it’s actually Section 230 that’s unconstitutional!”

I guess we can add this to Donald Trump’s recent Florida lawsuit that is also challenging the constitutionality of Section 230.

I doubt this particular challenge to Section 230 will end up getting very far, but it does seem notable as a case involving a state government arguing that Section 230 is, itself, unconstitutional under the 1st Amendment, 10th Amendment, and federalism. Of course, as the social media bill itself has shown, Florida does not exactly have a good track record for understanding what is, and what is not, a violation of the 1st Amendment. But, of course, when you have clueless Supreme Court Justices asking for cases challenging the constitutionality of Section 230, eventually we were going to get to this point.

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Comments on “Florida Tells Court: Actually, It's Section 230 That's Unconstitutional (Not Our Social Media Law)”

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85 Comments
Anonymous Coward says:

Insofar as 47 U.S.C. § 230 would render all or any portion of the Act unconstitutional, 47 U.S.C. § 230 is invalid and in violation of the First Amendment, the Tenth Amendment, and the principle of federalism.

Is it just me, or is that a steaming pile of stupid? It seems to be rejecting the argument "CDA 230 makes this unconstitutional" … except CDA neither attempts to interpret the constitution, nor has the authority to do so. It sounds kind of like Florida doesn’t even know what arguments are against it, and is just spitting terms out.

*For CDA 230 to be a source of "constitutionality" it would either need to be an amendment, somehow get it’s authority from a source that supperceeds the constitution (I will leave it to peoples imaginations if such a source exists or what it could be)

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Koby (profile) says:

Re: Re:

except CDA neither attempts to interpret the constitution

Section 230 does potentially attempt to violate states rights, in violation of the 10th Amendment. Federal law is normally only empowered to affect interstate commerce. Unless tech companies begin reclassifying social media posts as financial transactions, simply engaging in far reaching speech is not something within of the scope of congressional enumeration. To be sure, FL will have the deck stacked against it, thanks to disastrous decisions like the Darby case that considers practically anything that anyone does in any place as having a vague effect on commerce somehow.

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cpr kangarooski says:

Re: Re: Re:

Regulation of interstate telecommunications networks and their users is classic interstate commerce regulation because it deals with the apparatus through which much commerce is done.

Also the Constitution gives Congress a wealth of powers aside from regulating interstate commerce. Take a read through Art. I, Sec. 8 sometime.

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Anonymous Coward says:

Re: Re: Re:

To be sure, FL will have the deck stacked against it, thanks to disastrous decisions like the Darby case that considers practically anything that anyone does in any place as having a vague effect on commerce somehow.

Yeah, if only states could compete with each other by making their minimum wages lower…fucking social media companies were even scheming back in the 40’s to fuck with you guys.

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Anonymous Coward says:

Re: Re: Re:

Federal law is normally only empowered to affect interstate commerce. Unless tech companies begin reclassifying social media posts as financial transactions, simply engaging in far reaching speech is not something within of the scope of congressional enumeration.

I think you’re confusing the definitions of "commerce" and "finance". Finance and financial transactions are only one kind of commerce. Trading goods directly for good, services for services, or goods for services that don’t involve money changing hands are all still commerce. As we read Techdirt and post messages for others to see we are shown ads. This is an exchange, it is commerce. We have traded our attention and our thoughts to Techdirt for its content and platform for speech. This commerce is by its very design intended to cross state and even national border. It is at its heart quintessentially interstate commerce.

This power is limited by the 1st amendment:

Congress shall make no law … abridging the freedom of speech, or of the press …

CDA 230 doesn’t actually dictate what a site can or can’t host or moderate, only that a sites moderation or lack of moderation is not an action that can be brought in court. It doesn’t abridging speech, it simply enforces two simple rules, that the liability for speech not removed from a site lies with the person that created that speech, not the host, and that when a host exercises their own speech rights by removing content the original speaker, or another speaker, can’t sue them for that action.

It does not limit speech it limits what court actions can be taken in response to specific types of speech.

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Anonymous Coward says:

Re: Re: Re:

simply engaging in far reaching speech is not something within of the scope of congressional enumeration

Amendment 1

"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."

Wanna try that again, Sparky?

IAmNotYourLawyer (profile) says:

Re: Re: Re: Re:

That’s conflating two issues- if the Florida statute is invalid due to preemption by the CDA or due to the First Amendment. Those are independent questions.

The supremacy clause would mean that § 230 (if valid) preempts any conflicting portions of the Florida statute. If, as Florida might argue, § 230 is unconstitutional (or otherwise invalid), then it obviously can’t preempt the Florida statute.

Separate from § 230 preemption is whether the Florida statute violates the First Amendment. The First Amendment directly applies to the States through incorporation of the bill of rights against the States (see https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights) not the supremacy clause.

Even if § 230 were invalid, the Florida statute would still have to conform to the First Amendment, for which there is no States rights issue- long established SCOTUS rulings indicate that the First Amendment applies directly to the States.

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Scary Devil Monastery (profile) says:

Re: Re: Re:

"Section 230 does potentially attempt to violate states rights, in violation of the 10th Amendment…"

Koby, Koby, Koby…First it was 1A being violated. Then a slew of obscure, long-overturned precedent. Now it’s article 10.

I have some news for you; if you need to keep changing your reasons as to why section 230 is wrong then that is a very clear indicator that what is wrong isn’t section 230. You’re just an asshole persistently looking for a way to shoehorn rhetoric into providing you the end result you want.

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That Anonymous Coward (profile) says:

Re: A thought occurs.

While it would suck for a while, pull the Google playbook out.
Give them exactly what they demand.
Then blackhole every state with stupid laws like this.
Y’all would be shocked, just shocked, how much they would cry about how it is unfair to them.

They did the whole sites going black and slowing them down to make a point about net neutrality, I think a lovely banner saying

‘Sorry a proposed law in your state means you will no longer have access to this site and most other social media platforms.’

Then list the facts of what this law is actually about & a running total of how much taxpayer money has been wasted on a law that is unconstitutional.

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That One Guy (profile) says:

Re: Re:

Yup, that’s why a good while back TD had an article pointing out that those trying to gut 230 ultimately don’t have a problem with that law so much as they have a problem with the first amendment.

All 230 really does is short-circuit lawsuits relating to website owners/moderators exercising their first amendment rights, gut 230 and they can still moderate it’ll just be riskier.

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Koby (profile) says:

Re: Re:

Considering that most big tech companies are now taking orders from the federal government on what speech to ban, the Florida law would be seen as protecting speech, not abridging speech. Tech companies cannot claim that their speech is being violated when they also consider the posted speech to be owned by their user base.

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Mike Masnick (profile) says:

Re: Re: Re:

Considering that most big tech companies are now taking orders from the federal government on what speech to ban

Koby, no they’re not.

You need to stop getting your news from garbage ignorant websites. The federal government pointing out "this is disinfo" into a process websites have set up to report disinfo is not "taking orders on what speech to ban."

Don’t be an idiot.

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Koby (profile) says:

Re: Re: Re: Re:

Koby, no they’re not.

You need to stop getting your news from garbage ignorant websites.

It sounds like you heard the White House official press briefing yesterday. So it doesn’t matter if I cite MSN or Yahoo News, they still said they were doing it. Free speech advocates don’t like the idea of the government directing companies on which people to censor.

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Anonymous Coward says:

Re: Re: Re:3 Re:

Stone, per your usual Tourette’s spasm of ‘be specific’, here you go:

“We’re flagging problematic posts for Facebook that spread disinformation.” – Psaki

That is a direct, unaltered Psaki quote. That is specific. That ‘we’ is the Harris/Biden administration.

So….this isn’t working out quite the way you envisioned in your “yes, I nailed Koby” homosexual fantasies, eh?

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Mike Masnick (profile) says:

Re: Re: Re:2 Re:

It sounds like you heard the White House official press briefing yesterday.

At no point during the White House press briefing did they say they were ordering websites to ban speech.

The only ones reporting that are nonsense garbage websites, who took the comment out of context, lied about it, and distorted what was said. Coincidentally, those are the same garbage propaganda sites that always seem to have the same idiot talking points you spew here.

Koby: let’s be frank, you’re a duped fool.

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Anonymous Coward says:

Re: Re: Re:3 Re:

“We’re flagging problematic posts for Facebook that spread disinformation.” – Psaki

Masnick, go ahead with your obfuscatory “well, yeah, that is what she said … but, errr, I know better than the spokeswoman for the most powerful politician on Earth that what she, uhhh, meant was….”

So when Psaki said “WE” are “FLAGGING” posts “FOR” Big Tech…. tell us, what did she mean?

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Stephen T. Stone (profile) says:

Re: Re: Re:4

She meant “we’re flagging posts for Facebook to look at that we believe contain disinformation about the pandemic”. You have no proof that the federal government is ordering Facebook to delete such posts. You have no proof that the federal government is threatening Facebook into deleting such posts. Until you have such proof, your whiny-ass rambling is meaningless.

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Anonymous Coward says:

Re: Re: Re:5 Re:

I asked Masnick, but I guess his favorite porn-obsessed mouthpiece will do.

So, Stone, you understand when Circle-Back Psaki says ‘we’, she means the federal government, yes?

And when she says ‘disinformation’ she means concepts and ideas the feds consider dangerous, right? And ‘flag’ means telling Big Tech ‘this information is dangerous for the public to read’, right?

And when she says ‘for Facebook’ she means, well, ‘FOR FACEBOOK’, right?

I mean, you do see that big, difficult, esoteric word ‘FOR’ in there, right?

So again, the federal government is flagging information it doesn’t want the public to be aware of FOR Facebook.

I’m trying to help you and your Daddy Masnick with reading comprehension, since he claimed the exact opposite of the above factual sentence.

Anonymous Coward says:

Re: Re: Re:2 Re:

Doing what, Koby?

Compelling Twitter to send a DM to me saying there is misinformation? Compelling Facebook to send reams of data to government authorities (and getting paid for it too, since Zuck’s not gonna turn down free money) and then acting on said information to SUE a critic who set their critical post to private? “Compelling” Google to print government notices “combatting” disinfo campaigns like the ones you’re doing?

The USA isn’t Singapore or China. Unless you’re trying to say they should be. For your side.

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Scary Devil Monastery (profile) says:

Re: Re: Re:2 Re:

"It sounds like you heard the White House official press briefing yesterday."

You mean government saying; "We heard there was a rumor saying this. This is not correct. Here’s our version of events!"?

This is Baghdad Bob-level pathetic, Koby. Since when does a white house press briefing constitute orders?

Your anti-230 argument has been scraping the bottom of the barrel too long when all you’ve got in your hand is an implication that government speaking is censorship.

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Anonymous Coward says:

Re: Re: Re:3 Re:

“We’re flagging problematic posts for Facebook that spread disinformation.” – Psaki

WE are FLAGGING problematic (read: true) posts FOR FACEBOOK…

Yeah, really confusing language there. I wonder what she meant by those uncommon, archaic words like ‘we’ and ‘for’….

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Scary Devil Monastery (profile) says:

Re: Re: Re:4 Re:

"Yeah, really confusing language there. I wonder what she meant by those uncommon, archaic words like ‘we’ and ‘for’…."

As in, she issued a bog-standard PSA?

Yep, you really need to be illiterate to interpret that as anything other than what governments do as part of their normal job.

I’m not too surprised to see you hollering about censorship over a god damn fact check.

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Anonymous Coward says:

Re: Re: Re:

Considering that most big tech companies are now taking orders from the federal government on what speech to ban

I like how the gov’t flagging misinformation has become the gov’t giving orders to social media on what speech to ban.

Umm, the ultimate decision is still with the social media company. Nowhere is it stated that the gov’t will bring a force of action if social media doesn’t take posts down.

But in your world, it’s not OK of the gov’t to flag posts as misinformation, but it is OK for the gov’t to tell you exactly what posts you must keep up.

How can you keep all these conflicting ideas straight in your head?

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Anonymous Coward says:

Re: Re: Re:

Considering that most big tech companies are now taking orders from the federal government on what speech to ban

I don’t see how that’s possible. Republicans say too much is being removed, and Democrats say not enough is being removed. How then can companies "take orders" if there aren’t clear orders to be taken?

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Anonymous Coward says:

Re: Re: Re:

Tech companies cannot claim that their speech is being violated when they also consider the posted speech to be owned by their user base.

I seem to remember you & I having a talk on another post about equivocating social media with paper…how funny that when I pointed out that you don’t own the ‘paper’ you went all silent.

Wassamatter Bud? Does your level of stupidity preclude you from answering?

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Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"Koby is an algorithm designed to ship of thesius any event to fit his narrative."

Wrong metaphor. In that example Koby would be replacing the boards of the ship with runny feces rather than planking. His arguments only make sense once you assume that freedom doesn’t exist, free speech doesn’t exist, or private property doesn’t exist.

He isn’t rebuilding the ship of theseus. He’s rolling a wooden horse up to the gates.

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Anonymous Coward says:

Re: Re: Re: Re:

Jamie, who the hell is ‘thesius’? Even your pedophile minister of propaganda Ian Danskin knows it’s Theseus. At least be smart enough to parrot the spelling of the anti-White pseudo-intellectuals you take your marching orders from.

Try copying Masnick’s talking points word-for-word the way room, thatothergay, nasch, scarydevilmonastat, stone, et al do. At least he learned how to spell in Hebrew school.

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Anonymous Coward says:

Re: Re: Re:

Considering that most big tech companies are now taking orders from the federal government on what speech to ban

And Facebook’s response, basically, shove it:

The facts show that Facebook is helping save lives. Period.

Source: https://twitter.com/PeterAlexander/status/1416141177196322818

So, please Koby, tell us again how big tech is taking orders from the gov’t to ban speech…

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That One Guy (profile) says:

'I know you are but what am I?', truly a timeless legal argument

‘The law that protect the first amendment by making it clear that making use of it isn’t grounds for a lawsuit is the real unconstitutional law!’

I see florida has skipped right past table and facts and are busy pounding on the table, I’d say that was quick but with such a laughably bad law/PR stunt it’s not like they had any other options but lies and bluster to defend it.

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Bobvious says:

It all comes down to the newspaper model

You could write To The Editor, but they might not publish you, so if you had enough money you could pay for an ad or quarter/half/full page to run your views, thus performing an end run around "censoring conservatives" in the opinion pages.

Because social media doesn’t have a newspaper interface, you are not forced to wade through all the ads to get to the bits you are interested in, nor are you forced to read everyone’s opinion. But this new-fangled model sucks for "conservatives", thus they have to legislate for buggy-whip entangled social media.

It’s not fair. If people aren’t reading newspapers anymore, then social media should be forced to have the same interface.

Margaret, where are my smelling salts?

Anonymous Coward says:

Re:

Doing what, Koby?

Compelling Twitter to send a DM to me saying there is misinformation? Compelling Facebook to send reams of data to government authorities (and getting paid for it too, since Zuck’s not gonna turn down free money) and then acting on said information to SUE a critic who set their critical post to private? “Compelling” Google to print government notices “combatting” disinfo campaigns like the ones you’re doing?

The USA isn’t Singapore or China. Unless you’re trying to say they should be. For your side.

This comment has been flagged by the community. Click here to show it.

fairuse (profile) says:

Time for a you tube music video

Biden : Trump : Two sides of a gold coin.

Both perform for their people. Republicans were for limited gov’ment intrusion. Democrats have to have a federal solution to anything. That is why Biden is grandstanding on it’s Trumps fault

Media is just setting a stage, all op-ed videos are an act – waste time and money (taxpayer) on this stuff is making me think of term limits Capital Hill.

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Tanner Andrews (profile) says:

Re: Time for a you tube music video

Republicans were for limited gov’ment intrusion

Perhaps you were not paying attention. The government of Florida has three branches (executive, legislative, judicial), all of which are controlled by one party. That party, which has set the stage for the government to intrude into website operators’ decisions, is the Republican party.

Anonymous Coward says:

I have a idea. Let’s just get rid of the internet. It has been screwing this country up since it started. People don’t have to think for themselves anymore,the computer does it for them. We got by for thousands of years without computers or the internet. Now people can’t even drive across town without some app telling them how to get there. Use a map. That’s how it was done for hundreds of years. There would be a lot less car crashes from the idiots that can’t put their phone down. We just got our gas pipeline hacked from somewhere half way around the world. With no internet- that would be impossible. How about all the theft over the internet? No internet- no internet theft. Let’s go back to the days where you had to use your brain to figure out your math. Everything was written down on paper,never remember hearing about a paper crash. I have been saying for 15-20 years that the computer will be the downfall of man- with everything going wrong with the internet- time is ticking down. Now they are making computers to look and act human. Watch out what you wish for- you might get it.

Anonymous Coward says:

Re: Re:

Wow. Anonymous now makes you a coward. This just proves that our country is headed for socialism with the democrats in charge. Hope all of the dem sheep remember how it got started. YOUR so called president just left hundreds of Americans in Afghanistan. Just remember that they have no problem leaving you behind either!!

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