Judge tears Florida’s social media law to shreds for violating First Amendment

A federal judge has blocked Florida’s new social media law because it violates the First Amendment rights of tech companies that moderate user content on their online platforms. The state law would make it illegal for large social media sites like Facebook and Twitter to ban politicians and impose other restrictions on the tech companies, but the judge’s order means it cannot be enforced while an industry lawsuit against Florida is pending. The law would have taken effect today if not for the injunction.

The preliminary-injunction order issued by US District Judge Robert Hinkle yesterday called Florida’s law “an instance of burning the house to roast a pig.”

“If a preliminary injunction is not issued, the plaintiffs’ members will sometimes be compelled to speak and will sometimes be forbidden from speaking, all in violation of their editorial judgment and the First Amendment,” Hinkle wrote. The tech companies would sometimes be forbidden from speaking because the Florida law’s definition of censorship includes not only deleting content, but also “post[ing] an addendum to any content or material posted by a user.”

For several reasons outlined by the judge, the trade groups that sued Florida “are likely to prevail on the merits of their claim that these statutes violate the First Amendment,” Hinkle wrote. “There is nothing that could be severed and survive.” The judge’s order “preliminarily enjoins enforcement of the parts of the legislation that are preempted or violate the First Amendment,” he wrote.

Trade groups representing Facebook, Twitter, and other major websites quickly sued Florida after the state enacted its law in May. The lawsuit was filed in US District Court for the Northern District of Florida.

Gov. claimed law would stop “censorship” of conservatives

Florida Gov. Ron DeSantis claimed the Sunshine State’s law would stop the “censorship” of conservatives on social media websites. The law’s prohibition on kicking politicians off social media platforms would have imposed fines of up to $250,000 per day on social media companies that ban candidates for elected office.

The law also said that online platforms “may not take any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast,” unless the content is “obscene.” Another provision would give Floridians the right to sue Big Tech companies over content-moderation decisions.

The law carved out an unusual exemption for tech companies that happen to also own large theme parks, which would benefit Disney and Comcast, the latter of which owns NBCUniversal including Universal Theme Parks. As Big Tech trade groups pointed out in their lawsuit, “the exemption was added with the undisguised objective of ensuring that certain companies with big economic footprints in Florida—like Disney—are not ‘caught up in this.'”

Judge details everything wrong with the law

Hinkle’s order said that Florida’s law “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.”

In addition to violating the First Amendment, Hinkle found that the Florida law is preempted by Section 230 of the Communications Decency Act, which gives online platforms protection from lawsuits over how they moderate user-submitted content.

“[D]eplatforming a candidate restricts access to material the platform plainly considers objectionable within the meaning of [Section 230],” Hinkle wrote. “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 otherwise-legitimate, 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.”

Section 230 also preempts the parts of the Florida law “that purport to impose liability for other decisions to remove or restrict access to content” by creating a private right of action against social media companies, Hinkle wrote.

Theme-park exemption laughed out of court

During oral arguments, Florida’s lawyers were unable to mount a convincing defense of the theme-park exemption. Hinkle said the legal standard of “strict scrutiny” must apply to the law even though the state claimed the more permissive “intermediate scrutiny” standard should be used. The law would apparently fail under both tests, however.

“[I]n any event, when asked at oral argument, the State could suggest no theory under which the exclusion could survive even intermediate scrutiny,” Hinkle wrote. Further, “[d]espite 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,” he wrote.

State has “no argument” that could pass strict scrutiny

Hinkle then explained why the law doesn’t pass strict scrutiny:

To survive strict scrutiny, an infringement on speech must further a compelling state interest and must be narrowly tailored to achieve that interest. These statutes come nowhere close. Indeed, the State has advanced no argument suggesting the statutes can survive strict scrutiny. They plainly cannot. First, leveling the playing field—promoting speech on one side of an issue or restricting speech on the other—is not a legitimate state interest. Whatever might be said of any other allegedly compelling state interest, these statutes are not narrowly tailored. Like prior First Amendment restrictions, this is an instance of burning the house to roast a pig.

The law is subject to strict scrutiny because it was enacted with a “viewpoint-based motivation.” The plaintiffs asserted “with substantial factual support” that the law was motivated by “hostility to the social media platforms’ perceived liberal viewpoint,” Hinkle wrote.

He continued:

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.”

Additional factors make it clear the law is content-based, including one provision that “applies to deplatforming a candidate, not someone else,” and one that “imposes restrictions applicable only to material posted ‘by or about a candidate,’” Hinkle wrote. The state also did not provide a good defense “for imposing these restrictions only on the largest providers… 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,” he wrote.