A U.S. appeals court has said Florida’s ban on much social media moderation likely violates the First Amendment, setting up a legal showdown over social media speech rights. Today, the Eleventh Circuit Court of Appeals upheld most of an earlier court order blocking Florida’s SB 7072 while a trial continues. This directly contradicts a recent ruling on Texas’ similar moderation ban, creating a split that the Supreme Court could step in to resolve.
The Eleventh Circuit’s decision focuses on whether Florida law — which severely restricts suspensions, fact-checking and removal of content involving political candidates and media companies — plausibly violates the First Amendment. Florida’s defense of the law characterizes web platforms as quasi-governmental public spaces or “public operators” akin to a telephone company, rendering their moderation calls (in its reasoning) ineligible for First Amendment protection. . The ruling, handed down by Circuit Judge Kevin Newsom, disagrees.
“The platforms are private companies, not governmental (or even quasi-governmental) entities,” Newsom’s opinion states. “No one has the vested right to force a platform to allow them to contribute or consume content on social media.” The court also determines that “social media platforms are not ‘dumb pipes'” – in other words, they are not common carriers. Instead, they are digital spaces that actively organize a community by creating terms of service and deciding how to deliver and prioritize content. In Newsom’s words, “When a platform selectively removes what it perceives to be inflammatory political rhetoric, pornographic content, or public health misinformation, it is conveying a message and thereby engaging in a “speech” within the meaning of the First Amendment.
Like Mike Masnick at Techdirt states, the ruling tears up much of the legal logic that underpins conservative attempts to restrict moderation of social media content. It also addresses a particular concern that arose after the recent Buffalo shooting: whether those laws would require platforms to broadcast video of the mass murder. The answer, he concludes here, is yes. “SB 7072 would apparently prohibit Facebook or Twitter from deleting a video of a mass shooter shooting if it was reposted by an entity that qualifies for ‘journalistic enterprise’ status,” Newsom writes.
This is not the end of the problems either. In one section, the ruling notes that “the provision is so broad that it would prohibit a child-friendly platform like YouTube Kids from removing – or even adding an age restriction to – softcore pornography posted by PornHub. , which is called a ‘journalistic enterprise’ because it publishes over 100 hours of video and has over 100 million viewers a year.
The Eleventh Circuit believes that most of the law’s provisions, including its content moderation prohibitions, should remain blocked by the lower court’s injunction. There was no need to rule on one of the law’s strangest provisions, an exemption for companies that operate a theme park – because that part of the law was repealed in retaliation for criticism of Disney regarding Florida’s “Don’t Say Gay” law.
The Eleventh Circuit’s ruling reverses portions of the earlier injunction that do not involve directly restricting moderation, allowing parts of the rule to take effect while the trial is ongoing. This includes rules requiring sites to disclose changes to their terms of service and provide information about the number of people who have viewed a given content. (The decision in particular Is blocking a onerous disclosure rule that would have required platforms to offer a “thorough rationale” for any moderation decision.) Florida Attorney General Ashley Moody characterized these sections as a victory over Twitter, saying the court had “recognized the state’s authority to curb social media companies.”
More importantly, the ruling puts the Eleventh Circuit at odds with the Fifth Circuit — which recently overturned a Texas lower court’s block HB 20 without explanation. HB 20 has minor differences from Florida law, but it is equally (or perhaps more) sweeping, prohibiting any type of moderation based on a user’s “viewpoint” and theoretically prohibiting services Web to stop working in Texas. A Fifth Circuit panel favored the rule, with the justices suggesting that social networks were no different from internet service providers or the telephone company.
NetChoice and the CCIA have filed an emergency petition with the Supreme Court regarding HB 20. So far, the court has not appealed, but the Florida ruling offers good news for the platforms in the meantime.