’60-plus-page dress-down’ of DeSantis battle with Big Tech

Summary: Three-judge panel rules government can’t tell a private citizen or entity what to say or how to say it. The Free of Speech clause of the First Amendment “constrains governmental actors and protects private actors.” Social media platforms have the right to moderate content as they see fit, and government can make them host content they don’t want to host.

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Appeals Court Says Tech Law Violates First Amendment
By Dara Kam, The News Service of Florida

TALLAHASSEE — Dealing a major setback to Gov. Ron DeSantis, a three-judge appellate panel on Monday ruled that a 2021 Florida law targeting social-media platforms such as Facebook and Twitter unconstitutionally restricts the companies’ First Amendment rights.

Monday’s decision by the 11th U.S. Circuit Court of Appeals upheld most of a preliminary injunction imposed in June by U.S. District Judge Robert Hinkle.

“Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it,” appellate Judge Kevin Newsom wrote in a 67-page unanimous opinion joined by Judges Gerald Tjoflat and Ed Carnes.

DeSantis made the tech-targeting measure one of his top 2021 legislative priorities, accusing tech companies of having a liberal bias and censoring speech by Republicans.

The law, in part, sought to prevent large social-media platforms from banning political candidates from their sites and to require companies to publish — and apply consistently — standards about issues such as banning users or blocking content.

NetChoice and the Computer & Communications Industry Association, groups that represent tech titans such as Twitter, Facebook and Google, filed the lawsuit.

The industry groups argued the measure violated the First Amendment rights of companies and would harm their ability to moderate content on the platforms.

Lawyers for the state maintained that the social-media companies are quashing users’ speech rights.

But in Monday’s decision, Newsom repeatedly swatted down the state’s arguments.

“Not in their wildest dreams could anyone in the Founding generation have imagined Facebook, Twitter, YouTube or TikTok. 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,’” Newsom, who was appointed to the Atlanta-based appeals court by former President Donald Trump, wrote. “One of those ‘basic principles’ — indeed, the most basic of the basic — is that ‘(t)he Free Speech Clause of the First Amendment constrains governmental actors and protects private actors.’”

Even the largest social-media companies “are ‘private actors’ whose rights the First Amendment protects,” the judge added.

The panel found that “it is substantially likely” that social-media companies’ 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.”

The appeals-court decision left intact much of Hinkle’s preliminary injunction blocking the law. But it vacated the injunction on provisions requiring social-media platforms to publish their standards for determining how they censor, deplatform and “shadow ban” users. The panel also lifted the injunction on a provision prohibiting companies from changing their standards more than once every 30 days.

Also, the ruling removed a block on parts of the law requiring companies to allow users who have been deplatformed to access and retrieve all of their content for at least 60 days after they are stripped from a platform.

Plaintiffs in the lawsuit hailed Monday’s ruling.

“The 11th Circuit makes clear that regardless of size, online companies are private actors whose rights the First Amendment protects, putting to bed the red herring assertions of common carrier or dominance,” Carl Szabo, vice president and general counsel of NetChoice, said in a prepared statement. “The First Amendment protects platforms and their right to moderate content as they see fit — and the government can’t force them to host content they don’t want.”

DeSantis’ office didn’t immediately respond to a request for comment, but Attorney General Ashley Moody focused on the parts of the law that the appeals court backed.

“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. We will continue to vigorously defend Florida’s authority to demand accountability from Big Tech,” Moody said in a Twitter post.

But Matt Schruers, president of the Computer & Communications Industry Association, disagreed.

“The opinion speaks for itself,” Schruers said. “It’s a 60-plus-page dress-down.”

During arguments in the state’s appeal last month, Brian Barnes, a private attorney who represents the DeSantis administration, told the panel that social-media platforms such as Twitter — which has roughly 300 million monthly users — should be regulated in the same way as “common carriers.” Common carriers can include such service providers as transportation and telecommunications businesses.

But the panel found that common-carrier limitations don’t apply to social-media companies, which “moderate and curate the content” disseminated on their platforms.

“Neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier,” Newsom wrote. “The problem, as we’ve explained, is that social-media platforms don’t serve the public indiscriminately but, rather, exercise editorial judgment to curate the content that they display and disseminate.”

DeSantis pushed the social-media crackdown (SB 7072) after Twitter and Facebook blocked Trump from their platforms after his supporters rampaged at the U.S. Capitol on Jan. 6, 2021.

“Day in and day out, our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley,” the governor said at a bill-signing ceremony in May 2021.

But Monday’s ruling said social-media platforms “exercise editorial judgment that is inherently expressive” and thus are protected by the Constitution.

“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,” Newsom wrote. “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.”

The law’s restrictions on companies’ ability to moderate content “do not further any substantial governmental interest — much less a compelling one,” the panel found.

“Indeed, the State’s briefing doesn’t even argue that these provisions can survive heightened scrutiny. (The State seems to have wagered pretty much everything on the argument that S.B. 7072’s provisions don’t trigger First Amendment scrutiny at all.) Nor can we discern any substantial or compelling interest that would justify the act’s significant restrictions on platforms’ editorial judgment,” Newsom wrote. “Put simply, there’s no legitimate — let alone substantial — governmental interest in leveling the expressive playing field.”

Monday’s ruling is contrary to a recent decision by a panel of the 5th U.S. Circuit Court of Appeals in a case about a similar Texas law.

A U.S. district judge issued a preliminary injunction last year against the Texas law. But a divided panel of the 5th Circuit this month issued a stay of that preliminary injunction — effectively allowing the Texas law to take effect while the overall case continues to play out.