Florida's content-moderation law kept on ice, likely unconstitutional, court says

So cool you're into free speech because that includes taking down misinformation


While the US Supreme Court considers an emergency petition to reinstate a preliminary injunction against Texas' social media law HB 20, the US Eleventh Circuit Court of Appeals on Monday partially upheld a similar injunction against Florida's social media law, SB 7072.

Both Florida and Texas last year passed laws that impose content moderation restrictions, editorial disclosure obligations, and user-data access requirements on large online social networks. The Republican governors of both states justified the laws by claiming that social media sites have been trying to censor conservative voices, an allegation that has not been supported by evidence.

Multiple studies addressing this issue say right-wing folk aren't being censored. They have found that social media sites try to take down or block misinformation, which researchers say is more common from right-leaning sources.

Both the Texas law and Florida law were challenged by tech industry trade groups NetChoice and CCIA on the ground that they represent unconstitutional violations of the free speech rights of social media companies.

The Texas law was blocked last year but reinstated earlier this month by the US Fifth Circuit Court of Appeals – a decision that led the plaintiffs to seek emergency relief from the Supreme Court.

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The Florida law, among other things, imposed a $250,000-per-day fine on social media companies that block a statewide political candidate for more than two weeks, or a $25,000-per-day fine for blocking a local election candidate. And it would allow social media users to seek as much as $100,000 in damages for inconsistent application of content moderation.

It too was blocked last year with a preliminary injunction [PDF]. In the Florida case, a three-judge panel from the Eleventh Circuit this week partially upheld the injunction for portions of the law that "are substantially likely to violate the First Amendment."

"Social-media platforms exercise editorial judgment that is inherently expressive," the Eleventh Circuit decision [PDF] went. "When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction breaches of their community standards, they engage in First-Amendment-protected activity."

The appeals court also rejected Florida's argument that social media companies function as "common carriers," a designation applied to telecom infrastructure providers that requires content neutrality.

The ruling stated that social media companies, by fact and by law, are not common carriers, that the Supreme Court has suggested as much in the way it treats cable television, that Congress specifically excluded social media companies from common carriers, and that Florida cannot force them to become common carriers.

"Neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier," the decision reads.

At the same time, the appeals court vacated portions of the injunction that applied to specific provisions deemed likely to survive legal scrutiny. These include less consequential requirements, such as the law's authorization of free advertising for candidates under certain conditions and disclosure obligations about moderation rule changes.

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A spokesperson for NetChoice told The Register these provisions won't have any immediate impact.

Eric Goldman, Santa Clara University School of Law professor, argued in a law journal paper published earlier this year that such editorial transparency requirements are likely to run into constitutional problems, too.

Carl Szabo, VP and General Counsel of NetChoice, issued a statement welcoming the Eleventh Circuit decision.

"SB 7072 is an assault on the First Amendment and the Eleventh Circuit confirmed that," he said. "The Eleventh Circuit makes clear that regardless of size, online companies are private actors whose rights the First Amendment protects, putting to bed the red herring assertions of common carrier or dominance."

Szabo said the First Amendment protects the right of social media platforms to moderate content as they see fit, adding that the decision makes it more likely the Supreme Court will restore the injunction against the similar Texas law.

"This ruling means platforms cannot be forced by the government to disseminate vile, abusive and extremist content under penalty of law," said CCIA President Matt Schruers in a statement. "This is good news for internet users, the First Amendment and free speech in a democracy."

Florida Attorney General Ashley Moody took to social media to issue a statement that fails to acknowledge the judicial defeat.

"We are pleased the court recognized the state’s authority to rein in social media companies and upheld major portions of Florida’s law leading the way in doing so," she said, bafflingly. "We will continue to vigorously defend Florida’s authority to demand accountability from Big Tech." ®

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