Supporting a lawsuit that characterized a Florida social media law as a “frontal assault on the First Amendment,” a New York-based free speech group urged an appellate court on Tuesday to uphold a federal judge’s ruling blocking it.
“Florida’s version of the First Amendment would give the government sweeping authority over the digital public sphere and impede social media companies from addressing real harms online,” the Knight First Amendment Institute wrote in a 37-page amicus brief on Tuesday.
In May, the company NetChoice LLC sued several Florida officials responsible for enforcing S.B. 7072, championed by Gov. Ron DeSantis (R-Fla.) after Twitter and Facebook deplatformed former President Donald Trump following the assault on the U.S. Capitol on Jan. 6.
Denouncing what he described as “Big Tech” and “cancel culture,” the governor received near-universal criticism from free speech experts who argued that the DeSantis administration was responsible for the very censorship the governor claimed to condemn.
The challengers of the law prevailed before U.S. District Judge Robert L. Hinkle, who blocked Florida officials from enforcing it months later.
“The legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal,” Hinkle, a Bill Clinton appointee, noted in his June ruling. “Balancing the exchange of ideas among private speakers is not a legitimate governmental interest.”
On Tuesday, the Knight First Amendment Institute—the same organization that successfully sued Trump from blocking his critics on Twitter—asked the 11th Circuit to uphold Hinkle’s ruling.
“The Florida statute is plainly unconstitutional, and the appeals court should say so,” its executive director Jameel Jaffer wrote in a statement. “But it’s crucial that the appeals court reject theories of the First Amendment that would preclude the government from regulating more carefully to protect free speech online. As we explain in our brief, it matters what the court does in this case, but it also matters how the court does it.”
According to the lawsuit, the vast majority of legal experts, and a federal judge’s ruling, the measure would impose financial penalties on companies for engaging in constitutionally protected conduct, such as moderating their online platforms and enforcing their companies’ terms of service.
“It is worth emphasizing again that the protection the courts have accorded to editorial discretion is essential,” the institute’s lawyer, Scott Wilkens, wrote in the conclusion of his brief. “This protection has limits, however, and these limits help ensure that the protection serves, rather than undermines, First Amendment interests. The Court should not interpret the First Amendment in a way that would preclude legislatures from enacting carefully drawn laws, sensitive to First Amendment interests, that may be necessary to protect free speech online.”
In a statement, Wilkens said that upholding the Florida law would grant the government “sweeping authority” to control the internet.
“Adopting Florida’s position would give the government sweeping authority over the digital public sphere and impede social media companies from addressing real harms online, while adopting the social media platforms’ position would make it difficult or impossible for governments to enact even carefully drafted laws relating to transparency, privacy, and due process. Neither of these theories of the First Amendment would serve our society well in the digital age.”
DeSantis’s office did not immediately respond to Law&Crime’s email requesting comment.
Editor’s Note: An earlier version of this story misidentified the name of the amicus filer, which is the Knight First Amendment Institute. It also misstated where the brief was filed, which was the U.S. Court of Appeals for the 11th Circuit, not the Supreme Court.
Read the brief below:
(Photo by Joe Raedle/Getty Images)
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