SEBRING, FLORIDA – JANUARY 24: Ashley Moody, Florida’s Attorney General
Florida Attorney General Ashley Moody (R) praised a federal court decision blocking most of the Sunshine State’s new self-styled anti-censorship social media law. Moody is a named defendant in the lawsuit challenging the law. She has previously praised the effort by Gov. Ron DeSantis’s (R) administration to exert strong government oversight and regulation over certain social media companies.
“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,” Moody tweeted on Monday afternoon. “We will continue to vigorously defend Florida’s authority to demand accountability from Big Tech.”
The attorney general’s effusive response to the court’s decision, however, was criticized by legal experts who pointed out that the core of the law was actually kept on ice due to First Amendment concerns. Specifically, Florida is still blocked from punishing companies like Facebook and Twitter who “deplatform” political candidates.
Only minor portions of the law were allowed to take effect.
University of Texas Law Professor Steve Vladeck categorized Moody’s response to the decision as “quite a take.”
Vladeck went on to say that the ruling comes “from a deeply conservative Eleventh Circuit panel (i.e., judges most likely to be sympathetic)” and noted that the appellate opinion “unanimously kept the key parts of Florida’s law on hold because they’re “substantially likely” to *violate* the First Amendment.”
In June 2021, U.S. District Judge Robert Hinkle issued a preliminary injunction–barring the law, in its entirety, from taking effect.
“The legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal,” the lower court said. “Balancing the exchange of ideas among private speakers is not a legitimate governmental interest.”
On Monday, the U.S. Court of Appeals for the 11th Circuit largely kept Hinkle’s injunction in place. The law, SB 7072, is made up of 12 substantive statutory provisions–amendments and additions–to the Florida Statutes. The appeals court affirmed the injunction for seven of those subsections and vacated the injunction for five. The decisions on what parts of the law are allowed to stand and which parts will continue to be barred were made on the basis of what the court deemed to be their likely constitutionality.
While numerically a mixed bag, the ruling decidedly blocks more of the law than it allows to stand and the opinion itself harshly upbraids the State of Florida for attempting to violate the First Amendment.
“Not in their wildest dreams could anyone in the Founding generation have imagined Facebook, Twitter, YouTube, or TikTok,” Circuit Judge Kevin Newsom, a Donald Trump appointee, begins. “But ‘whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.'”
The opinion sketches out why SB 7072 is mostly unconstitutional:
We hold that it is substantially likely that social-media companies—even the biggest ones—are “private actors” whose rights the First Amendment protects, that their so-called “content-moderation” decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms’ ability to engage in content moderation unconstitutionally burden that prerogative. 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. Accordingly, we hold that the companies are entitled to a preliminary injunction prohibiting enforcement of those provisions.
The opinion goes on to allow Florida to enforce three subsections that require companies to publish certain non-controversial information, provide users with certain data if they ask for it, and tell political candidates about certain advertising policies. But the court itself, on its own terms, minimizes what’s left for Florida here.
“Taking stock: We conclude that social-media platforms’ content-moderation activities—permitting, removing, prioritizing, and deprioritizing users and posts—constitute ‘speech’ within the meaning of the First Amendment,” Newsom goes on. “All but one of S.B. 7072’s operative provisions implicate platforms’ First Amendment rights.”
The judge goes on to offer several lectures on free speech and social media–preemptively warning that this section of the opinion “would be too obvious to mention if it weren’t so often lost or obscured in political rhetoric,” an implicit rebuke to certain politicians who have offered increasingly distorted understandings of what, exactly, constitutes protected speech under First Amendment jurisprudence.
“No one has an obligation to contribute to or consume the content that the platforms make available,” Newsom notes. “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.”
The opinion also holds out the distinct possibility that the minor provisions they allowed to stand for now will prove to be “unduly burdensome” and might eventually get struck down anyway.
Moody’s praise for the decision—which essentially guts Florida’s efforts to rein in social media companies’ ability to censor and moderate certain content and users—did not go unnoticed.
This is hilarious. The ruling is a near complete victory for the internet, and a near complete loss for Florida. https://t.co/ahIgvXnonp
— Mike Masnick (@mmasnick) May 23, 2022
“Every single content moderation policy of our content moderation bill has been enjoined as unconstitutional, but we *might* be able to hang on to the afterthought transparency provisions for a little while longer.” https://t.co/U2neqDtMCD pic.twitter.com/IS03mHjPKb
— Dan Lifschitz (@DanLifschitzEsq) May 23, 2022
Imagine trying to spin “all of the provisions that actually do the things we said this law was really about are likely unconstitutional” as “upheld major portions.”
Also don’t get too cocksure there: https://t.co/KiQd7xHpCO pic.twitter.com/KVlxUnXjiL
— Ari Cohn (@AriCohn) May 23, 2022
Did you… did you read it? https://t.co/YNP6cKRa0e
— Trace Mitchell (@TraceEVMitchell) May 23, 2022
Moody, for her part, has also supported similar legislation, based on SB 7072, in Texas–notably by filing an amicus brief in support of the Lone Star State’s law. She would later post about her support for the Texas law on Twitter. The U.S. Court of Appeals for the Fifth Circuit famously upheld that law earlier this month.
DeSantis and Moody, in recent briefs, unsuccessfully pressed Newsom and the other other judges on the panel to vacate the entirety of the SB 7072 injunction by citing to the Fifth Circuit’s ruling.
In a turnabout being fair play situation, the plaintiffs seeking to overturn the Texas law immediately filed a motion citing the 11th Circuit’s Monday decision with the U.S. Supreme Court.
[image via Joe Raedle/Getty Images]
