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Florida’s New Social Media Law Blocked with Court’s Injunction

July 1, 2021, 12:53 AM

A federal judge has blocked Florida’s new law penalizing social media companies for barring political candidates from their platforms from taking effect Thursday.

The law signed May 24 by Republican Gov. Ron DeSantis violates the First Amendment and doesn’t apply to all social media providers equally, Judge Robert Hinkle of the U.S. District Court for the Northern District of Florida said in an order Wednesday issuing a preliminary injunction.

“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,” Hinkle said in his order.

Remarks by Florida lawmakers and DeSantis about the law “show rather clearly that the legislation is viewpoint-based,” Hinkle said.

“The legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal. Balancing the exchange of ideas among private speakers is not a legitimate governmental interest,” Hinkle said. “And even aside from the actual motivation for this legislation, it is plainly content-based and subject to strict scrutiny. It is also subject to strict scrutiny because it discriminates on its face among otherwise-identical speakers: between social-media providers that do or do not meet the legislation’s size requirements and are or are not under common ownership with a theme park.”

The Computer & Communications Industry Association and NetChoice sued the state May 27. The law strips online service providers of their First Amendment rights and compels them to host content that violates their policies and community standards, the trade groups said in a June 3 motion.

Lawmakers also unfairly exempted The Walt Disney Co. and Universal Studios—which operate theme parks in Florida—while targeting “certain technology companies, based on the belief that those companies’ content-moderation decisions are driven by an objectionable political ‘ideology,’” the trade groups said in the June 3 motion.

CCIA and NetChoice members include Twitter Inc., Facebook Inc., Amazon.com Inc., Google, and Pinterest.

“Florida’s statute is an extraordinary overreach, designed to penalize private businesses for their perceived lack of deference to the Government’s political ideology. The court’s ruling is a win for internet users and the First Amendment,” CCIA President Matt Schruers said in an emailed statement Wednesday.

Under the law S.B. 7072, social media companies face $250,000 daily fines for blocking a statewide candidate for more than 14 days. Blocking candidates in local elections carries a $25,000 daily fine.

Individual users could seek up to $100,000 in damages for claims that a platform’s content standards were inconsistently applied to their posts or profiles.

Brian Barnes of Cooper & Kirk PLLC represents defendant Patrick Gillespie, deputy secretary of business operations for the Florida Department of Management Services. The other defendants are Florida Attorney General Ashley Moody and the members of the Florida Elections Commission.

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There’s a fundamental difference between the editing and selection of material published by traditional media outlets and the moderation of content posted by the public to social media sites, and so editorial protections under the First Amendment don’t apply to the tech companies, said Barnes, speaking for all the defendants in a June 28 video hearing before Hinkle.

The judge appeared skeptical of the state’s arguments.

“I won’t put you on the spot by asking if you’ve ever dealt with a statute that was more poorly drafted,” Hinkle said while questioning Barnes.

Penalizing social media companies for what he called “censorship” of conservative speech was one of DeSantis’ priorities this year.

He cited Twitter’s permanent suspension of former President Donald Trump, and YouTube’s removal of a panel DeSantis hosted with scientists who opposed masks and business closures during the pandemic, in arguing for the regulation.

DeSantis and lawmakers have said social media platforms function as public spaces and so must remain open to all.

“I think most people in our state, and I think probably throughout the country for that matter, are uncomfortable with having a handful of massive companies basically being in charge of regulating the political speech in this country and being able to choose what people can say,” DeSantis told reporters June 15 in Tallahassee, Fla.

But in order to remain usable, social media must be curated and edited, the libertarian think tank TechFreedom said in an amicus brief supporting CCIA and NetChoice.

“Like good gardeners, the providers of social media are constantly intervening—promoting one thing, demoting another, excluding yet another—to shape and maintain an appealing product,” TechFreedom’s brief said.

CCIA and NetChoice are represented by the law firms DLA Piper, Wilson Sonsini Goodrich & Rosati P.C., and Stearns Weaver Miller Weissler Alhadeff & Sitterson P.A.

The case is NetChoice LLC v. Moody, N.D. Fla., No. 4:21-cv-00220.

To contact the reporter on this story: Jennifer Kay in Miami at jkay@bloomberglaw.com

To contact the editors responsible for this story: Kibkabe Araya at karaya@bloombergindustry.com

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