A federal appeals court has affirmed a lower court decision that ruled key provisions in a state law to crack down on social media “censorship” are unconstitutional.
Judge Kevin Newsom, writing the unanimous opinion of the three-judge panel from the 11th U.S. Circuit Court of Appeals, said the First Amendment likely protects social media companies’ rights to moderate the content on their platforms.
“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.
“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,” he continued.
The law became one of Gov. Ron DeSantis’ priorities in the 2021 Legislative Session after Twitter and other prominent social media companies banned then-President Donald Trump and other conservatives from their platforms following the U.S. Capitol riot.
The law mandated social media companies post their terms of service, publish standards for handling issues like censorship, deplatforming and blocking users, and apply the standards consistently. Further, the law limited bans on political candidates to 14 days, after which they would face fines of $250,000 per day for statewide candidates or $25,000 per day for local candidates.
Though it was signed by DeSantis, lawyers representing Computer & Communications Industry Association (CCIA) and NetChoice quickly filed a federal lawsuit and a judge blocked it from ever going into effect.
The internet interest lobbying associations argued the law infringes on platforms’ rights of freedom of speech, equal protection, and due process in violation of the First and 14th Amendments to the U.S. Constitution.
“S.B. 7072 is an assault on the First Amendment and the 11th Circuit confirmed that,” said Carl Szabo, vice president and general counsel of NetChoice. “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.”
“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,” Szabo continued. “This makes it even more likely that the US Supreme Court will overturn the 5th Circuit’s split decision on the similar Texas law.”
The new ruling, handed down by the 11th U.S. Circuit Court of Appeals, upheld the lower court injunction against the law’s provisions abridging platforms’ editorial discretion. Under the court’s ruling, provisions including obligations regarding data and disclosure requirements remain in force.
“This ruling means platforms cannot be forced by the government to disseminate vile, abusive and extremist content under penalty of law. This is good news for internet users, the First Amendment and free speech in a democracy,” CCIA President Matt Schruers said.
“When a digital service takes action against problematic content on its own site 一 whether extremism, Russian propaganda, or racism and abuse 一 it is exercising its own right to free expression. We will continue to fight for the First Amendment rights of digital services to engage in the editorial judgments they need to make to protect their users.”
Attorney General Ashley Moody, however, tried to frame the decision in a positive light and vowed to continue fighting for the law to be enforced. The court found five of the bill’s 12 provisions to likely be constitutional.
“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 said. “We will continue to vigorously defend Florida’s authority to demand accountability from Big Tech.”
The ruling follows a ruling over a similar Texas law in which the 5th U.S. Circuit Court of Appeals allowed the Lone Star State’s tech bill to go into effect. That case awaits a decision on an emergency appeal made with the U.S. Supreme Court.
Scott Wilkens, senior staff attorney at the Knight First Amendment Institute at Columbia University, lauded the 11th Circuit for finding a middle ground he said will be influential in future decisions.
“This is a well-reasoned decision and a victory for free speech. The court rightly rejects Florida’s argument that the platforms lack First Amendment rights, but it also properly rejects the platforms’ argument that the First Amendment insulates them from all regulation. Hopefully, this careful and persuasive ruling will be influential with other courts,” Wilkens said in a statement.
Renzo Downey contributed to this report.