Florida’s Social Media Law Likely Violates First Amendment

UPDATED, with comment from Ron DeSantis: A federal appellate court is keeping Florida’s social media law – intended to address alleged platform bias against conservatives – on hold, after a three-judge panel ruled that it was “substantially likely” that it violates the First Amendment.

The law, signed and championed by the state’s governor Ron DeSantis takes aim at the content moderation practices of Facebook, Twitter and other sites, as it would prohibit the companies from de-platforming political candidates and prioritizing or de-prioritizing posts about a candidate. It also would prohibit platforms from removing anything posted by a “journalistic enterprise” based on its content, the judges noted.

“We further conclude that it is substantially likely that one of the law’s particularly onerous disclosure provisions—which would require covered platforms to provide a ‘thorough rationale’ for each and every content-moderation decision they make—violates the First Amendment,” Judge Kevin Newsom wrote in the opinion. (Read it here).

The decision affirms a lower court ruling and an argument made by the social media companies — that the First Amendment protects their decisions on what to allow on their sites.

In the decision, Newsom also seemed to be trying to remind the public that social media platforms are “private enterprises, not governmental (or even quasi-governmental) entities.”

“No one has an obligation to contribute to or consume the content that the platforms make available,” he wrote. “And correlatively, while the Constitution protects citizens from governmental efforts to restrict their access to social media no one has a vested right to force a platform to allow her to contribute to or consume social-media content.”

Newsom was nominated to the federal appellate court by President Donald Trump, who has been a frequent critic of the social media platforms. Trump launched Truth Social, a rival to Twitter, in part because of his claims that the platform was biased against voices on the right.

Newsom also wrote that the platforms aren’t just “dumb pipes.”

“They’re not just servers and hard drives storing information or hosting blogs that anyone can access, and they’re not internet service providers reflexively transmitting data from point A to point B,” he wrote.

Meanwhile, internet platforms have appealed to the Supreme Court in their effort to put a Texas law on hold. A federal appeals court in Texas lifted an injunction on that law earlier this month. The Texas law prohibits large platforms from censoring users based on viewpoint.

Matt Schurers, president of the Computer & Communications Industry Association, which challenged the Florida law along with NetChoice, said in a statement, “This ruling means platforms cannot be forced by the government to disseminate vile, abusive and extremist content under penalty of law. This is good news for internet users, the First Amendment and free speech in a democracy.”

A spokesperson for DeSantis released a statement noting that the appellate court upheld some provisions of the law. The governor’s office said that “we are nevertheless disappointed that the court continues to permit censorship. The court’s central holding that social media platforms are similar to newspapers and parades, rather than common carriers that transmit others’ messages, is stupefying. Floridians know differently.” The spokesperson said that the governor’s office “is currently reviewing the options for appeal. We will continue to fight big tech censorship and protect the First Amendment rights of Floridians.”

When he signed the law last year, DeSantis said that it was “guaranteed protection against the Silicon Valley elites.”

“If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable,” he said.

Supporters of the law argued that the social media platforms acted like “public utilities,” and argued that they should be treated like “common carriers.” That designation gives governments a greater interest in imposing regulations on private entities to ensure equal access.

But Newsom cited case law that extended First Amendment protection of editorial judgment to entities beyond newspapers, including an electric utility, cable operator and parade operator.

“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,” he wrote. He also rejected the argument that internet companies act like common carriers, citing case law and federal statute.