U.S. appeals court: Florida law targeting Facebook, Twitter is unconstitutional
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.
The 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 techtargeting 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 socialmedia 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 socialmedia 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 wrote, quoting a 2011 decision. “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.’ ”
Newsom, who was appointed to the Atlantabased appeals court by former President Donald Trump, added that even the largest social-media companies “are ‘private actors’ whose rights the
First Amendment protects.”
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, de-platform 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 de-platformed 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. Attorney General Ashley Moody focused on the parts of the law that the appeals court backed.