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. (See: “Federal Judge Blocks DeSantis’ Social Media Law, Finding It “Riddled with Imprecision and Ambiguity.”)
“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. [All three judges were Republican appointees: Newsom was appointed by Donald Trump. Carnes was appointed by George H. W. Bush in 1992. Tjoflat, who is 93, was first appointed to the federal bench in the Middle District of Florida by Richard Nixon in 1970, and to the Fifth Circuit in 1975.]
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.
–Dara Kam, News Service of Florida
See the ruling.
Deborah Coffey says
DeSantis is MUCH more dangerous than Donald Trump…because he’s MUCH smarter. He KNOWS that many of the laws he’s been signing are unconstitutional but DeSantis has gone all-out FASCIST. So apparently, he can’t help himself. If he ever made it into our White House, the United States of America would be “over.” No one would ever recognize it again because all democratic rights would be thrown out and everyone would have to obey Ron DeSantis. Sickening.
Timothy Patrick Welch says
Governed Desantis has just set a precedent that the new Disinformation Governance Board (part of the Department of Homeland Security) can not limit free speech either. Consider the Dem’s supported Larry Flint’s free speech right to profit off of porn, and the Republicans free speech right to oppose.
Having several years of employment by the US Government, I am qualified but not authorized to inform the reader that our Government lies continuously. It’s quite the hypocritical situation. But you can be comforted in the fact it’s justified as important to national security.
Good Morning Deborah. . . a truly excellent comment! I couldn’t agree more!
If you do not want our entire democracy completely destroyed. . . . VOTE! VOTE! VOTE! DEMOCRATIC!
Any politician, who is an election denier is dangerous. By claiming that American elections are fraudulent, they feed the feeling of aggrievement in their base. The politics of aggrievement results in anger against the “others” and a desire to right the “wrong”. This inspired the insurrection on January 6 and the recent shooting in Buffalo.
DeSantis is more nuanced than #45, but this is what he said back in 2020 after the election on Laura Ingraham’s Fox show: DeSantis called on residents of Pennsylvania and Michigan to contact their state legislators and ask them to override the popular vote and install two slates of presidential electors loyal to Trump “if they’re not following the law.”
Much of what DeSantis says and does is role playing for the Trumpian base. I’m not sure if DeSantis is more dangerous (to our democracy) than #45, but he certainly acts like an authoritarian.
You obviously over consumed the democratic Kool aid.Elections will prove you wrong.
@ chas. . . simply because someone is elected does not mean they are “Right” in any way. The election of corrupt and likely treasonous trump who lied over 30 THOUSAND times during his 4 years in office proves that!
The same with FOX. . . simply because they have a popular “entertainment” network that peddles lies, conspiracy theories, fear and hate does not mean they are a credentialed news organization. The problem with our right to free speech is that pure BS is sold on FOX and social media 24/7 and people like you believe it! Pathetic!
Michael Cocchiola says
I fear that DeSantis knows the restrictive laws he’s passing are unconstitutional. But with the Supreme Court tightly held by uber-conservatives, he expects favorable (and biased) treatment if he can raise his dictatorial pronouncements to that now politicized and polluted body.
Thank you judges for ruling within the law. DeathSantis once again proves he thinks he is above the law which he is not. It also proves he is a want to be Dictator and thinks he is above all laws which he is not. DeathSantis is out of control, and very dangerous. He is out for himself and for himself only. Let’s watch him throw Trump under the bus in 2024, should be a fun battle to watch.
Pierre Tristam says
Timothy Patrick Welch’s self-aggrandizing and inaccurate statement (“qualified but not authorized to inform…” no government employee current or former is ever stopped from whistleblowing, except by his own decision and understandable fear of retribution, but that’s a different issue) should be turned around: unqualified and self-authorized to use public forums to peddle his falsehoods. There was no such thing as “:Dem’s [sic.] supported Larry Flint [sic.] free speech right to profit off porn, and the Republican free speech right to oppose [sic.].” The 8-0 decision in Hustler Magazine v. Falwell in 1988 was written by William Rehnquist, among the most right-wing justices of the last century, and joined by William Brennan, Thurgood Marshall, Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, and Antonin Scalia, with a Byron White concurrence. Only White and Marshall were Democratic appointees, and if you eliminate Brennan (“I have made two mistakes, and they are both sitting on the Supreme Court,” Eisenhower said of Brennan and Earl Warren, whom he called “that dumb son-of-a-bitch Earl Warren”) you’re still left with Nixon, Ford and Reagan appointees, capped by Opus Dei Justice Scalia himself. To their credit, they could read the First Amendment. Our right honorable governor, ostensibly a Yale and Harvard-educated lawyer, has (as Mike Cocchiola suggests) chosen to translate and interpret it by way of House Bill 7, which now gives Floridians the authority to sue when they disagree or feel bad about something they read.
Thank you Pierre for sharing facts that Timothy will most likely will dispute. Keep up the good work!
Okay, I just read HB 7 and now understand what you wrote. What I don’t understand is, how does this improve Republican conservative rights? It seems to me that if I am offended by Republican speech, I can sue them too. It appears that it is just a spiraling battle, or more so, just another way to divide us up (and conquer).
Thanks so much for yet again fact checking and bringing us the truth, Pierre!
Perhaps, he’ll get what he wants. We’ll have to wait… and listen.