Florida Presents Its Laughable Appeal For Its Unconstitutional Social Media Content Moderation Law

from the disney-exempt! dept

Now that Texas has signed its unconstitutional social media content moderation bill into law, the action shifts back to Florida’s similar law that was already declared unconstitutional in an easy decision by the district court. Florida has filed its opening brief in its appeal before the 11th Circuit and… it’s bad. I mean, really, really bad. Embarrassingly bad. I mean, this isn’t a huge surprise since their arguments in the district court were also bad. But now that they’ve had a judge smack them down fairly completely, including in terribly embarrassing oral arguments, you’d think that maybe someone would think to try to lawyer better? Though, I guess, you play with the hand your dealt, and Florida gave its lawyers an unconstitutionally bad hand.

Still, I’d expect at least marginally better lawyering than the kind commonly found on Twitter or in our comments. It starts out bad and gets worse. First off, it claims that it’s proven that social media platforms “arbitrarily discriminate against disfavored speakers” and uses a really bad example.

The record in this appeal leaves no question that social media platforms arbitrarily discriminate against disfavored speakers, including speakers in Florida. The record is replete with unrebutted examples of platforms suppressing user content for arbitrary reasons. E.g., App.891 (Doc.106-1 at 802) (Facebook censoring The Babylon Bee, a Florida-based media company, for obviously satirical content). When caught, platforms frequently cast these decisions off as ?mistakes.? E.g., App.1693 (Doc.106-5 at 201). But systematic examinations show that platforms apply their content standards differently to content and speakers that express different views but are otherwise similarly situated, all while publicly claiming to apply those standards fairly. See App.999, 1007, 1183 (Doc.106-2 at 14, 22; Doc.106-3 at 17). There are many examples in the Appendix, and even that list is hardly exhaustive.

Except that at scale, tons of mistakes are made, so yes, many of these are mistakes. And others may not be, but it is up to the platform to determine who breaks the rules. But, much more importantly, it is totally within the right of private companies to moderate how they see fit and interpret their own terms of service. So even if there were proof of “discrimination” here (and there is not), it’s not against the law.

From there it just gets silly:

Undoubtedly, social media is ?the modern public square.? Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017). In S.B. 7072 (the ?Act?)…

Generally speaking, citing Packingham is a demonstration for support of your plan to force private actors to host speech shows you have totally misunderstood Packingham and are either too ignorant or too disingenuous to take seriously. Packingham is about preventing the government from passing laws that remove full internet access from people. It does not mean that any private company has to provide access to anyone.

The argument that Florida’s law is not pre-empted by Section 230 is nonsense. Section 230 is clear that no state law can contradict it and do anything to put liability on private website operators (or users) regarding the actions of their users. But that’s exactly what Florida’s law does.

As the District Court tacitly acknowledged, the only part of that statute that could possibly preempt the Act is Section 230(c)(2). But that provision serves only to absolve platforms of liability when they remove in good faith content that is ?objectionable? within the meaning of Section 230(c)(2). That leaves myriad ways in which the Act can apply consistently with Section 230(c)(2). For example, the Act and Section 230 can peacefully coexist when a social media platform fails to act in ?good faith,? when the Act does not regulate the removal or restriction of content, or when a platform removes unobjectionable material.

This is disingenuous to downright wrong, and completely ignores the interplay between 230(c)(1) and 230(c)(2) and, notably, the fact that nearly every lawsuit regarding moderation has said that (c)(1) protects all moderation choices, whether or not they are “good faith.” And Section 230 clearly also pre-empts any attempt by a state to ignore moderation that is protect by (c)(1). Florida’s lawyers just ignore this. Which is kind of stunning. It’s not like the lawyers for NetChoice and CCIA are going to ignore it too. And they can point to dozens upon dozens of cases that prove Florida wrong.

The 1st Amendment argument is even worse:

Plaintiffs are also unlikely to succeed on their claim that the Act violates the First Amendment on its face. Most of the Act is directed at ensuring that social media platforms host content in a transparent fashion. For example, the Act requires non-controversial, factual disclosures, and disclosure requirements have long coexisted with the First Amendment. Even the portions of the Act that regulate the manner in which platforms host speech are consistent with the First Amendment. When properly analyzed separately from the Act?s other provisions?and from the extraneous legislative statements on which the District Court primarily relied?these requirements parallel other hosting regulations that the Supreme Court has held are consistent with the First Amendment. E.g., Rumsfeld v. FAIR, Inc., 547 U.S. 47, 63 (2006). The Act?s hosting regulations prevent the platforms from silencing others. They leave platforms free to speak for themselves, create no risk that a user?s speech will be mistakenly attributed to the platforms, and intrude on no unified speech product of any platform. These requirements are little different from traditional regulation of common carriers that has long been thought consistent with the First Amendment.

The reliance on Rumsfeld v. FAIR is quite silly, and the few people who have brought it up also tend to look quite silly. This is not even remotely similar to the Rumsfeld situation, which was very narrow and very specific and cannot be extended to apply to an entire social media platform. And to just sort of toss in the idea that social media is a common carrier — when they do not meet (at all) the classification of a common carrier, and have never been deemed a common carrier — is just boldly stupid.

There’s more, of course, but those are the basics. You never know how a court is going to decide — and perhaps you get a confused and persuadable judge (there are, unfortunately, a few of those out there). But, this is really weak and seems unlikely to stand.

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Comments on “Florida Presents Its Laughable Appeal For Its Unconstitutional Social Media Content Moderation Law”

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

Re: Re: Re:

No, they’re smart. Very, very, smart.

  • Democrats have the majority votes, on a national scale.
  • Most Democrat/Progressive agenda items are popular in polls, when you get past personal partisanship.
  • Swing voters tend to forget party platforms and vote for the party in power when things are going well, and against them when things do not seem to be going well.

If you are the minority party, how do get (or stay,) in power?

  1. Propose a ridiculously partisan law, such as voting rights, LGBTQ, abortion, or social media bias. Loudly proclaim your intentions on social media, and to any camera or microphone in range.
  2. Let the Twitterverse and Prime-time cable news pundits work themselves into a lather, drawing in the rest of the media horde.
  3. Heads we win, Tails you lose.

If the law is enacted and survives court challenges, they win. They have achieved their policy aims and hit the campaign trail with the message of "we get things done, unlike those wimp do-nothings over there."

If the law fails in the legislature or courts, Progressives/Liberals still lose. They have lost precious time, political will, and supporter enthusiasm. Tremendous resources and emotional energy get spent to defeat something that took very little effort on the part of the GOP. It’s asymmetric warfare at it’s finest.

And like like Lucy and the football, the Left falls for it every single time.

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

Anonymous Coward says:

Re: Re: Re: Re:

Which is why 2A exists.

These "Republican" voters have basically allowed violence to be used on them and their politicians since Jan 6 happened.

Time to actually show them the other side can play dirtier.

I mean, the Dems clearly do not want to listen to the rural people (who are already a lost cause since they will vote Republican and hate Dems), despite having actual worries. And now these rural voters have thrown their lot in with these lying tyrannical shitheads.

Wake up and smell the shit. Any legal recourse you plan to use will not work.

Disclaimer: I do not and will not endorse anything that is illegal. I am merely here to tell you that it’s too late to rely on the legal methods.

Paul B says:

Re: Re: Re:2 Re:

Bernie Sanders already showed that Rural people are not as backward as you think. He was one of the first candidates in years to have strong republican backing vs Trump. Had he been on the ballot over Hillary this would be a very different outcome.

Dems "Can" reach out to Rural communities, but in general they cant appear to be more of the same that we normally see, you need people who can actully address rural issues and talk to them in ways they understand.

TaboToka (profile) says:

Re: Re: Re:3 Re:

you need people who can actu[a]lly address rural issues and talk to them in ways they understand.

For example, don’t say "climate change," instead use "extended drought", "shorter growing seasons" and "higher feed prices".

Don’t say, you want to eliminate "tax breaks for the rich," instead say you want to "provide more farm subsidies"

Anonymous Coward says:

Re: Re: Re:2 Cool story bro.

Like when all those truckers shut down the entire US food-chain? Or is this one more like that time all the fighter pilots quit and rode eagles into the sunset? Oh I know, it’s just like the time all the bikers drove in an unbroken freedom wall around DC until the Deep State fled to their secret Antarctic Reptile Hollow Earth Base?

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

Re: Re:

It’s amazing that the GQP is supposed to be conservative in spending, but they are bleeding out money on stupid laws that won’t win.

The thing you are missing is that they are not bleeding money as much as investing it for huge capital gains. They are buying the stories "fake media are out for conservatives", "crooked big state judges are out for conservatives" and their payout is lots of campaign money as well as voter turnout for electing judges and representatives that are not above owning the libs.

It works, and they won’t stop until they have stopped the U.S. from even trying to give the wrong kind of people voice and representation and rights and dignity.

Bloof (profile) says:

Re: Re:

Because if they blow endless amounts of money defending unconstitutional Conservervative feeling protection acts, there’s less money availabvle for the things government is meant to do, and gives them another excuse for slashing government spending. When election season rolls around, they’ll run on the government being broken, and people who’ve been shafted by republican government will lap it up without ever stopping to look at how it really got this way.

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

'Good argument' depends on the goals

If looked at through the legal lens then the arguments are crap because the law is garbage, leaving nothing for the lawyers to really work with and requiring them to basically throw out whatever they can think of.

Looked at through the lens of this being first and foremost a PR stunt on the other hand and they make a lot more sense, they don’t need to make good legal arguments because those arguments aren’t aimed at people who would be able to spot the holes, they just need to sound good to your average non-lawyer.

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ECA (profile) says:

Something strange.

"But, much more importantly, it is totally within the right of private companies to moderate how they see fit and interpret their own terms of service."

If this were true then you dont need 230(?).
If we are considering that the corps are independent of the gov., we dont need this.
Then if you consider corps independent of Each other, you really dont need this. as the RIAA/MPAA would have no say in whats shown or published on any site.

Corp speech is the rights of a corp to use its Money for politics. Why are we giving them Full freedom of speech and right to moderate, More then what our gov. or even newspapers have?

The ability Not to be sued, while a 3rd party makes a comment is great. But beyond that, how far do we goto give corps Full freedom of speech? They have had it along time, with not repercussions, with how they deal with Broadcast TV. They get to decide what you see and hear. Even the political groups know this. And HOW they love to be able to BUY, and raise the price of BUYING political adverts so that the Smaller groups CANT get advert time. The only reasons its not in court is no one can afford the Money or TIME it would take to get a decision on Truth in adverts.
There are allot of oddball sites that people can join and Spew all the strange things that want, AS there were in the past with Magazines, and those magazines made a fortune off of it.
With FB, I could see them restricting the distribution of GARBAGE, by limiting access, unless someone really wants to goto a certain section of FB. But how far are we letting the corps deal with this and they DONT have to listen to laws/regulations/concerns?
Who created the idea that the Gov. was hands off to the corps? WE USED to have some controls for them. WE even paid them NOT to go broke.

Or is this like the gov. has a 3rd party control over many of the corps, and use’s it as a Patsy? is this a game in a game? We know that Many of those in congress are Corporation backed. Giving the corps the ability to Censor certain things based on ???, what the gov says? What the Other corps want? I can understand the 3rd party rule of THEM standing back and letting things Run wild. But some dont get how smart WE ARE. Even here on TD, we have some that have more then 1 account or use Anon, to say things. The big concern seems to be Saying/doing/publishing something, and the Corps cant trace it. The Gov. should have little concern over 1st amendment. Who is more concerned?

It really seems strange that we have been kept in a bubble along time and Someone wants that Bubble to Stay in place. Its like, How many wars have we been in with, recently. In 911, we decided to march on 2 countries. And later in the war we decided to bomb a few others in that area also? 3-4 I think. Does anyone remember declaring war on any of these countries? We declared war on al qaeda and taliban. Not a country. and if you are concerned about this country, I think we have many other concerns More then 2 militant Muslim groups.

James Burkhardt (profile) says:

Re: Something strange.

"But, much more importantly, it is totally within the right of private companies to moderate how they see fit and interpret their own terms of service."

If this were true then you dont need 230(?).
If we are considering that the corps are independent of the gov., we dont need this.
Then if you consider corps independent of Each other, you really dont need this. as the RIAA/MPAA would have no say in whats shown or published on any site.

You’ve missed a major point: 230 is not the immunity. 230 is a legal procedure that allows invalid first amendment lawsuits to be shut down earlier in the process – importantly before discovery. The Malwarebytes case posted today makes this very point.

Just because you can’t win (because 1st amendment) doesn’t mean you can’t sue.

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

Re: Re: Something strange.

Sorry, James. You’re allowing Koby to troll you again.

This site has been saturated with section 230 stories, nearly 350 over literally the last 20 years.

It’s not even wilful ignorance, and it hasn’t been for a long while.

Anonymous Coward says:

Re: Re: Something strange.

230 doesn’t just prevent unconstitutional lawsuits: there was never any suggestion that the Prodigy ruling was unconstitutional, and there’s no obvious constitutional reason that congress couldn’t say that moderated services are analogous to newspaper letters pages or to Vox Pops, and there’s fairly good reasons to say that selectively promoting a particular post based on its content is an editorial decision for which the editors are responsible.

For example, with S230 as it is now, if J Random User with 6 followers including his mum posts that some personal enemy of Jack Dorsey eats babies, that’s defamatory but basically harmless. If Dorsey decides to put that on everyone’s front page, its J Random User that is liable for the much greater harm it now does, not Jack, who gets off scot free.

The law could also have gone the other way, and been even more extreme by tightening the definition of the operator’s contribution, or extending the same protection to other publishers.

TKnarr (profile) says:

Re: Something strange.

What you’re ignoring is something common to all SLAPP suits: that the process itself is the punishment. Whether or not the defendant eventually prevails is irrelevant when the cost of prevailing is so high due to the legal process that the defendant can’t afford to keep going long enough to prevail. Section 230 provides a legal process for shutting down such abusive suits before the defendant is forced to incur the ruinous costs of successfully defending themselves.

David says:

Re: Something strange.

"But, much more importantly, it is totally within the right of private companies to moderate how they see fit and interpret their own terms of service."

If this were true then you dont need 230(?).

Huh? How is section 230 not a part of establishing the rights of a content hoster?

That’s like "I am sitting very well" "if this were true then you would not need the chair".

ECA (profile) says:

Re: Re: Something strange.

But we gave them the first amendment.
At least for the ability to use Money to support politics.
You would think the corps would be backing all the contentions with it.
Any corp that got upset with it, could and would support it, or is it the ISP’s that want extra money and want it to go away.
With the backing of the 1st, they can do what ever they want, with speech. Leave everything up, and Who cares. All 230 is doing is telling everyone that they have 3rd party protections, as long as they dont EDIT. They Can censor. and they Do.
But who is telling them what Has to be censored? I would think its the other corps, including movie and music. I would think that the Crap talk is bound to get torn apart by those in a forum or chat, or treated as a troll.

I would love to see the impact of no censorship. Just kill the spam. It would show up very quickly, who and what is pushing things the hardest.

Anonymous Coward says:

Re: Re: Re:2 Something strange.

I think a world where Prodigy had stuck would look a lot more like the old days of Usenet, where there were relatively few moderated groups and most people just used killfiles and soaring rules to filter the spam while putting up with the relative minority of Nazis etc. because there wasn’t anything better.

The sites you list have the tiny user base they do because they have no USP except the moderation policies.

Anonymous Coward says:

Re: Re: Re:3 Something strange.

Back in the old days of Usenet, users had some competence in programming, and so could deal with their own filtering. Nowadays, many people can only use Social media via a dedicated app, or by using a Google search to find the sites. Many would give up if faced by the likes of the old Usenet, as they could not manage their own filtering.

Anonymous Coward says:

Re: Something strange.

"But, much more importantly, it is totally within the right of private companies to moderate how they see fit and interpret their own terms of service."

The interesting part is that this is the bit that’s easiest for state to attack, by regulating the use of contracts of adhesion so that any discretion or interpretation of a contract of adhesion is the sole preserve of the party who didn’t write the contract. Sure, S230 would still allow the operator to remove content, but since the user would have to give permission to remove it without breaking the terms of use, a unilateral takedown would also revoke all the copyright licences, privacy waivers, and so on granted by the TOU.

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

"Undoubtedly, social media is the modern public square."

While social media might sometimes be used in a manner resembling the historical uses of public squares, until the government buys and nationalises all social media companies this right-wing mantra is pure bunk that has no place in a legal briefing.

RP says:

DeSantis, Governor and Florida Man

On Thursday, a federal judge issued a preliminary injunction against Florida’s new definition of riot as unconstitutionally vague and rejected the Governor’s argument that it simply codified the common law definition of riot. Actual riots are illegal, but peacefully holding a sign with a group of like-minded fellows while the governor or sheriff thinks someone near you might turn violent cannot be a crime.

From Above the Law: Court Dropkicks FL Law That Redefined Protest As Illegal Riot

Gov. DeSantis produced some extremely gross racism, including evidence that unrelated Black civil rights groups in other parts of the state had organized marches.
“Though it is true the event flyers include images of Black men and women apparently engaged in peaceful protest, Plaintiffs are not before this Court representing all Black men and women in the State of Florida,” the court noted acidly.
DeSantis also included this flier for a Juneteenth celebration of “Black Joy” as proof that the defendants felt free to express their opposition to the government.

Confusing a picnic with a protest march with a riot is a good way to show your understanding of the 1st Amendment is unconstitutionally vague.

See also the judgment in Doc 137 of Dream Defenders v. DeSantis (4:21-cv-00191), District Court, N.D. Florida.

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

Re: DeSantis, Governor and Florida Man

That hypocrisy is bloody weapon’s-grade level. ‘Peaceful gatherings of black people are threats to the public and deserve to be shut down as riots! Also dishonest assholes online who may be spreading information that can and has gotten people killed need to have their posts protected from moderation!’

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

Just So Folks Know

The state’s initial brief lets us know that

Undoubtedly, social media is “the modern public square.” [pg 4, citing Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017)]

From this we can conclude that all these comments on Techdirt, not being part of “social media”, are not part of the debate in the public square. I guess we can all go home now.

Of course, once we do that, we run into the problem that my lawn is not a forum in which you have the right to be heard. You have the right to leave my lawn, buy the house across the street, and put up a sign denouncing me for being a mean person who does not allow you to speak.

All of this, including my arbitrary and capricious decision not to allow you on my lawn, is protected by the US First Amendment and US Fifth Amendment. That is where the state goes wrong, in fact.

The state fails to distinguish between a town full of lawns, where the city does not get to choose which candidates’ signs may be displayed, and the individual lawns whose respective owners have complete choice as to whose signs will be shown.

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