from the boom-goes-the-dynamite dept
I’m sorry, but those of you looking forward to riding the Friend Feed Flume at Zuckland or the Search Engine Shuffle at GooglePark are probably out of luck. Florida’s new social media law (and its theme park owner exemption) is not going to become law.
We’ve written a few times about Florida’s blatantly corrupt and unconstitutional social media content moderation law — complete with its special carveout for Disney*. The legal challenge to the bill had a hearing in court on Monday, and as we expected, Florida’s arguments in favor of the bill were not well received. I listened to the entire hearing and, to put it mildly, the judge was not impressed by Florida’s arguments. At one point, he literally asked the lawyer defending the bill if he had ever come across a more poorly drafted piece of legislation. That’s generally not a good sign.
And, now, with just hours to go until the law was supposed to go into effect, the judge has granted the preliminary injunction blocking the bill, and the ruling makes it pretty clear that this bill is not going to survive. Of course, Florida will likely appeal the ruling, and it’ll be up to the Appeals Court to go into more depth. During the hearing, the judge, Robert Hinkle, more or less admitted this would be the case, and said that his ruling wouldn’t go that deep, because what the Appeals Court says will be more important in the long run. Even so, the ruling is worth exploring, as it smashes the law to bits in a variety of ways.
The State of Florida has adopted legislation that imposes sweeping
requirements on some but not all social-media providers. The legislation applies
only to large providers, not otherwise-identical but smaller providers, and
explicitly exempts providers under common ownership with any large Florida
theme park. The legislation compels providers to host speech that violates their
standards?speech they otherwise would not host?and forbids providers from
speaking as they otherwise would. The Governor?s signing statement and
numerous remarks of legislators show rather clearly that the legislation is
viewpoint-based. And parts contravene a federal statute. This order preliminarily enjoins enforcement of the parts of the legislation that are preempted or violate the
So, let’s start with ye olde 1st Amendment. As we predicted, it’s pretty clear that this law violates it. The judge agrees. For all the talk of how the law supposedly “protects” the 1st Amendment, the judge recognized it absolutely does the opposite. I’ve tried to highlight the key bits if you want to skim:
First, the State has asserted it is on the side of the First Amendment; the
plaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at odds
with accepted constitutional principles. The First Amendment says ?Congress?
shall make no law abridging the freedom of speech or of the press. The Fourteenth
Amendment extended this prohibition to state and local governments. The First
Amendment does not restrict the rights of private entities not performing
traditional, exclusive public functions. See, e.g., Manhattan Cmty. Access Corp. v.
Halleck, 139 S. Ct. 1921, 1930 (2019). So whatever else may be said of the
providers? actions, they do not violate the First Amendment.
Second, the First Amendment applies to speech over the internet, just as it
applies to more traditional forms of communication. See, e.g., Reno v. ACLU, 521
U.S. 844, 870 (1997) (stating that prior cases, including those allowing greater
regulation of broadcast media, ?provide no basis for qualifying the level of First
Amendment scrutiny that should be applied? to the internet).
Third, state authority to regulate speech has not increased even if, as Florida
argued nearly 50 years ago and is again arguing today, one or a few powerful
entities have gained a monopoly in the marketplace of ideas, reducing the means
available to candidates or other individuals to communicate on matters of public
interest. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the
Court rejected just such an argument, striking down a Florida statute requiring a
newspaper to print a candidate?s reply to the newspaper?s unfavorable assertions.
A similar argument about undue concentration of power was commonplace as the
social-media restrictions now at issue advanced through the Florida Legislature.
But here, as in Tornillo, the argument is wrong on the law; the concentration of
market power among large social-media providers does not change the governing
First Amendment principles. And the argument is also wrong on the facts.
Whatever might be said of the largest providers? monopolistic conduct, the internet
provides a greater opportunity for individuals to publish their views?and for
candidates to communicate directly with voters?than existed before the internet arrived. To its credit, the State does not assert that the dominance of large
providers renders the First Amendment inapplicable.
The court then explores various precedential cases regarding the ability of the government to compel a private company to host speech and finds that the arguments of Florida are lacking. Since there are speech issues at stake, the law must be subject to strict scrutiny — and as such it fails the 1st Amendment test. Indeed, public statements made by Florida’s governor Ron DeSantis, grandstanding about this bill, are part of what helped to sink it (it would have been sunk anyway, but it’s amusing to see his public statements used by the judge here):
The plaintiffs assert, too, with substantial factual support, that the actual
motivation for this legislation was hostility to the social media platforms?
perceived liberal viewpoint. Thus, for example, the Governor?s signing statement
quoted the bill?s sponsor in the House of Representatives: ?Day in and day out, our
freedom of speech as conservatives is under attack by the ?big tech? oligarchs in
Silicon Valley. But in Florida, we said this egregious example of biased silencing
will not be tolerated.? Similarly, in another passage quoted by the Governor, the
Lieutenant Governor said, ?What we?ve been seeing across the U.S. is an effort to
silence, intimidate, and wipe out dissenting voices by the leftist media and big
corporations. . . . Thankfully in Florida we have a Governor that fights against big
tech oligarchs that contrive, manipulate, and censor if you voice views that run
contrary to their radical leftist narrative.? This viewpoint-based motivation,
without more, subjects the legislation to strict scrutiny, root and branch. See, e.g.,
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)
(?The government must abstain from regulating speech when the specific
motivating ideology or the opinion or perspective of the speaker is the rationale for
the restriction.?) (citing Perry Ed. Ass?n v. Perry Local Educators? Ass?n, 460 U.S.
37, 46 (1983)).
Moreover, these statements are consistent with the statutory definition of
?social media platform,? which extends only to, and thus makes the legislation
applicable only to, large entities?those with $100 million in revenues or 100
million monthly participants. As the Supreme Court has recognized, discrimination
between speakers is often a tell for content discrimination. See, e.g., Citizens
United v. Fed. Election Comm?n, 558 U.S. 310, 340 (2010) (?Speech restrictions
based on the identity of the speaker are all too often simply a means to control
content.?). That is the case here. The state has suggested no other basis for
imposing these restrictions only on the largest providers. And even without
evidence of an improper motive, the application of these requirements to only a
small subset of social-media entities would be sufficient, standing alone, to subject
these statutes to strict scrutiny. See, e.g., Minneapolis Star & Tribune Co. v.
Minnesota Comm?r of Revenue, 460 U.S. 575, 591 (1983); Arkansas Writers?
Project, Inc. v. Ragland, 481 U.S. 221, 229 (1987).
And, yeah, the Disney carveout is seen as a tell as well:
Finally, the same is true of the exclusion for social-media providers under
common ownership with a large Florida theme park. The State asserted in its brief
that the provision could survive intermediate scrutiny, but the proper level of
scrutiny is strict, and in any event, when asked at oral argument, the State could
suggest no theory under which the exclusion could survive even intermediate
scrutiny. The State says this means only that the exclusion fails, but that is at least
questionable. Despite the obvious constitutional issue posed by the exclusion, the
Legislature adopted it, apparently unwilling to subject favored Florida businesses
to the statutes? onerous regulatory burdens. It is a stretch to say the severability
clause allows a court to impose these burdens on the statutorily excluded entities
when the Legislature has not passed, and the Governor has not signed, a statute
subjecting these entities to these requirements.
The judge then goes even further, by noting that even if you applied intermediate scrutiny (a lower standard) the bill still wouldn’t live up to 1st Amendment requirements:
The provisions at issue here do not meet the narrow-tailoring requirement.
Indeed, some of the disclosure provisions seem designed not to achieve any
governmental interest but to impose the maximum available burden on the social
The judge also follows up on his comments during the hearing about how poorly drafted the law is to note the many problems in the law for being vague and open to wildly different interpretations, but notes that given the other reasons to block the law, he doesn’t need to use the vagueness issue for the injunction.
In the end, the court recognizes that this bill was really all about punishing a few companies, and that’s not how the law is supposed to work:
The legislation now at issue was an effort to rein in social-media providers
deemed too large and too liberal. Balancing the exchange of ideas among private
speakers is not a legitimate governmental interest. And even aside from the actual
motivation for this legislation, it is plainly content-based and subject to strict
scrutiny. It is also subject to strict scrutiny because it discriminates on its face
among otherwise-identical speakers: between social-media providers that do or do
not meet the legislation?s size requirements and are or are not under common
ownership with a theme park. The legislation does not survive strict scrutiny.
There is also, extremely briefly, a recognition that the law is likely pre-empted by Section 230, basically highlighting that the law clearly violates 230’s prohibitions on allowing platforms to moderate as they see fit:
Florida Statutes ? 106.072 prohibits a social media platform from
deplatforming a candidate for office and imposes substantial fines: $250,000 per
day for a statewide office and $25,000 per day for any other office. But
deplatforming a candidate restricts access to material the platform plainly
considers objectionable within the meaning of 47 U.S.C. ? 230(c)(2). If this is done
in good faith?as can happen?the Florida provision imposing daily fines is
preempted by ? 230(e)(3). Good faith, for this purpose, is determined by federal
law, not state law. Removing a candidate from a platform based on otherwiselegitimate, generally applicable standards?those applicable to individuals who are
not candidates?easily meets the good-faith requirement. Indeed, even a mistaken
application of standards may occur in good faith.
The federal statute also preempts the parts of Florida Statutes ? 501.2041
that purport to impose liability for other decisions to remove or restrict access to
content. See Fla. Stat. ? 501.2041(6) (creating a private right of action for damages
for violations of ? 501.2041(2)(b) and (2)(d)1; id. ? 501.2041(2)(b) (requiring a
social media platform to apply censorship, deplatforming, and shadow banning
standards in a consistent manner); id. ? 501.2041(2)(d)1 (prohibiting a social
media platform from deplatforming a user or censoring or shadow banning a user?s
content without notifying the user); ? 501.2041(2) (making any violation of that
subsection an unfair or deceptive act or practice within the meaning of
? 501.204?and thus providing a private right of action for damages under
Claims based on alleged inconsistency of a platform?s removal of some
posts but not others are preempted.
That last line needs to be repeated over and over again for every state considering these kinds of laws.
Anyway, Florida is almost certainly going to waste more taxpayer dollars and appeal this ruling, but it’s really difficult to see how the law survives. It was a garbage unconstitutional bill from the very beginning — a point that many, many people made clear to both Governor DeSantis and the legislators who pushed this bill. But, of course, the goal was never to get this bill into actual law. It was all a big theater production — to let them pretend to be culture warriors against “the libs” who they claim run social media platforms. It’s just unfortunate that they get to throw away taxpayer money on their theatrical grandstanding.
* By the way, if you’d like to see a fun moment in the Florida legislature during the debate over the bill, check out this fairly incredible video of the discussion between Rep. Blaise Ingoglia — who inserted the Disney carveout — and Rep. Anna Eskamani who wants to get him on record explaining why. Ingoglia flat out admits that it’s to protect Disney, though his argument is so hilariously dumb it’s hard to believe it’s real. He argues that they need to protect Disney+ reviews (Disney+ doesn’t currently have reviews) and that it shouldn’t apply to other sites, because Disney creates its own content. This ignores, of course, that the entire bill is about the moderation of 3rd party content (such as, uh, reviews, which are not created by Disney). It’s almost as if he doesn’t understand what all of this means, and is just making sure to do a favor to Disney, just because.
Filed Under: 1st amendment, content moderation, florida, injunction, section 230, theme parks
Companies: ccia, facebook, google, netchoice, twitter