OK to Treat Social Networks Like Carriers: Fla.

Regulating how powerful social media companies control user content is “little different from traditional common carrier regulation long thought to be constitutionally permissible,” said Florida Monday at U.S. District Court in Tallahassee. The state opposed internet industry groups’ motion for preliminary injunction, arguing that Communications Decency Act Section 230 doesn’t preempt Florida from regulating networks that censor free speech: Plaintiffs may say sites are businesses not subject to the First Amendment, but if “Section 230 creates a broad law-free zone in which internet companies can censor however they like, even in bad faith, then serious questions would arise about whether their censorship constitutes state action.” Even if the court disagrees social networks are state actors, “there is nevertheless state action to whatever extent Section 230 preempts Florida law,” argued Florida, citing a 1956 Supreme Court case, Railway Employees’ Department v. Hanson. The Supreme Court, in 2006’s Rumsfeld v. FAIR and 1980’s PruneYard Shopping Center v. Robins, said the First Amendment gives government wide latitude to regulate, Florida said. A footnote responded to plaintiffs’ incredulity about the law exempting companies that own Florida theme parks, which could include Disney and Comcast. It “only applies to a handful of entities, none of which operates a social media platform of significant size,” Florida said. “The narrow exception survives intermediate scrutiny, and in any event should be severed from the rest of the Act if the Court deems it unconstitutional.” Virtual oral argument is June 28 at 1:30 p.m. Judge Robert Hinkle said he plans to rule on preliminary injunction by end-of-day June 30 (see 2106100059). The court received amicus briefs opposing the state law last week, including from the Internet Association, Electronic Frontier Foundation, American Civil Liberties Union and TechFreedom. It might seem “counterintuitive,” but “the answer to Florida lawmakers’ concerns ... is to preserve the constitutional status quo,” wrote EFF. The law vests Florida “with the pure power of the censor,” said ACLU and press and writer groups. Common carriage rules may not be applied to social media, said TechFreedom.