Fla. Won't 'Relent' on Social Media Law Despite Court Loss

Florida plans to “immediately appeal” to the 11th U.S. Circuit Court of Appeals Wednesday's decision by the U.S. District Court in Tallahassee to freeze Florida’s law regulating social media, said a spokesperson for Gov. Ron DeSantis (R) Thursday. Hours before the law was to take effect, Judge Robert Hinkle granted NetChoice and the Computer and Communications Industry Association’s motion for preliminary injunction (see our bulletin). Plaintiffs and supporting amici told us they’re confident the 11th Circuit won’t overturn the lower court.

“The power amassed by Big Tech is terrifying and we are reviewing all available legal actions,” said Florida Attorney General Ashley Moody (R) in a statement. “We will not relent on our pursuit to push back.” DeSantis disagrees “that the U.S. Constitution protects Big Tech’s censorship of certain individuals and content over others,” emailed the governor’s spokesperson. “This case was always bound for the Eleventh Circuit and the appeals court will ultimately make its own decision on legal conclusions.”

Unless a higher court overturns Hinkle’s ruling, Florida may not enforce the law that would make it unlawful for sites to deplatform political candidates and requires sites be transparent about policing, unless the site owns a Florida theme park. Hinkle refuted Florida’s suggestion at oral argument to sever the theme-park exemption but preserve the rest of the law (see 2106280066). “The plaintiffs are likely to prevail on the merits of their claim that these statutes violate the First Amendment,” he wrote. “There is nothing that could be severed and survive.” The preliminary injunction didn’t cover the law’s antitrust provision because it wouldn’t take effect right away.

NetChoice “expected Florida to appeal” and is “confident the 11th Circuit will uphold the district court’s very well-reasoned order enjoining Florida’s very unconstitutional law,” NetChoice General Counsel Carl Szabo said Thursday. Amicus the Internet Association is “confident” the 11th Circuit “will recognize that IA members’ ability to freely engage in First Amendment-protected content moderation activities is essential to protect consumers from a wide range of harmful activity, including foreign disinformation campaigns and spam,” General Counsel Jon Berroya said.

Reversal on appeal is a risk in any case, but amicus TechFreedom isn’t “particularly worried,” Free Speech Counsel Ari Cohn told us. Unlike the district court’s race to decide before the law’s planned July 1 effective date, the 11th Circuit could take about six months after hearing the case, Cohn said. If Florida loses again, it’s “virtually certain” the state will ask the Supreme Court for relief, even though the court doesn’t seem likely to take the case, including because there isn’t a circuit split, he said. TechFreedom President Berin Szoka emailed, “Republicans' goal has always been to be seen as ‘fighting,’ not to pass laws that could withstand scrutiny.”

“The legislation compels providers to host speech that violates their standards -- speech they otherwise would not host -- and forbids providers from speaking as they otherwise would,” Hinkle wrote in Wednesday’s decision. The signing statement of Gov. Ron DeSantis (R) “and numerous remarks of legislators show rather clearly that the legislation is viewpoint-based.” Parts of the law conflict with Section 230 of the Communications Decency Act, the judge said.

Claiming Florida seeks to protect the First Amendment “is perhaps a nice sound bite,” but “wholly at odds with accepted constitutional principles,” Hinkle wrote. “State authority to regulate speech has not increased even if ... one or a few powerful entities have gained a monopoly in the marketplace of ideas, reducing the means available to candidates or other individuals to communicate on matters of public interest.” The law “was an effort to rein in social-media providers deemed too large and too liberal,” Hinkle said. “Balancing the exchange of ideas among private speakers is not a legitimate governmental interest. And even aside from the actual motivation for this legislation, it is plainly content-based and subject to strict scrutiny.”

“This decision upholding the Constitution and federal law” agrees that the law “is an extraordinary overreach, designed to penalize private businesses for their perceived lack of deference to the Government’s political ideology,” CCIA President Matt Schruers said Wednesday.