Florida Court Bars Enforcement of State’s New Social Media Law

The statute stems from SB 7072, a state senate bill signed into law by Governor Ron DeSantis on May 24. The law purports to “hold Big Tech accountable by driving transparency and safeguarding Floridians’ ability to access and participate in online platforms,” according to a statement issued by DeSantis at the time.

The new law was immediately challenged upon its signing, in a lawsuit filed by NetChoice, LLC and the Computer & Communications Industry Association, trade associations whose members include social media providers and platform operators subject to the new law.

In his ruling, Judge Robert L. Hinkle noted that the law “compels providers to host speech that violates their standards—speech they otherwise would not host—and forbids providers from speaking as they otherwise would.”

“The Governor’s signing statement and numerous remarks of legislators show rather clearly that the legislation is viewpoint-based,” Hinkle added. “And parts contravene a federal statute.”

The federal statute in question is the much-maligned Section 230 of the Communications Decency Act, a law subject to many proposals to reform, repeal or replace the statute, which have come from Republican and Democrat officeholders alike.

In his order, Hinkle noted several ways in which Florida’s new law is preempted by Section 230.

“Under § 230, a provider of interactive computer services—this includes, as things have evolved, a social-media provider—cannot be ‘held liable’ for any action ‘taken in good faith to restrict access to or availability of material that the provider… considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,’ Hinkle wrote. “The statute says it does not prevent a state from enforcing any consistent state law—the federal statute thus does not preempt the field—but the statute does expressly preempt inconsistent state laws: ‘No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.’”

Hinkle then detailed some of the ways in which the new Florida law is inconsistent with Section 230.

“Florida Statutes § 106.072 prohibits a social media platform from deplatforming a candidate for office and imposes substantial fines: $250,000 per day for a statewide office and $25,000 per day for any other office,” Hinkle observed. “But deplatforming a candidate restricts access to material the platform plainly considers objectionable within the meaning of 47 U.S.C. § 230(c)(2). If this is done in good faith—as can happen—the Florida provision imposing daily fines is preempted by § 230(e)(3). Good faith, for this purpose, is determined by federal law, not state law. Removing a candidate from a platform based on otherwise legitimate, generally applicable standards—those applicable to individuals who are not candidates—easily meets the good-faith requirement. Indeed, even a mistaken application of standards may occur in good faith…. The federal statute also preempts the parts of Florida Statutes § 501.2041 that purport to impose liability for other decisions to remove or restrict access to content.”

These inconsistencies bolstered the plaintiffs’ case for the court issuing a preliminary injunction against enforcement of the law, because as Hinkle noted in his order, “the plaintiffs are likely to prevail on their challenge to the preempted provisions—to those applicable to a social media platform’s restriction of access to posted material.”

In the section of the order that takes up the plaintiffs’ constitutional claims, Hinkle took issue with some of Florida’s rhetoric surrounding the law, as well.

“(T)he State has asserted it is on the side of the First Amendment; the plaintiffs are not,” Hinkle wrote. “It is perhaps a nice sound bite. But the assertion is wholly at odds with accepted constitutional principles. The First Amendment says ‘Congress’ shall make no law abridging the freedom of speech or of the press. The Fourteenth Amendment extended this prohibition to state and local governments. The First Amendment does not restrict the rights of private entities not performing traditional, exclusive public functions… So whatever else may be said of the providers’ actions, they do not violate the First Amendment.” (Citations omitted.)

Hinkle also observed that even if social media platforms have become the “monopolies” that Florida and others argue they have become, this fact doesn’t change the First Amendment analysis applied by the court.

“(S)tate authority to regulate speech has not increased even if, as Florida argued nearly 50 years ago and is again arguing today, 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,” Hinkle wrote. “In Miami Herald Publishing Co. v. Tornillo, the Court rejected just such an argument, striking down a Florida statute requiring a newspaper to print a candidate’s reply to the newspaper’s unfavorable assertions.

“A similar argument about undue concentration of power was commonplace as the social-media restrictions now at issue advanced through the Florida Legislature,” Hinkle continued. “But here, as in Tornillo, the argument is wrong on the law; the concentration of market power among large social-media providers does not change the governing First Amendment principles. And the argument is also wrong on the facts. Whatever might be said of the largest providers’ monopolistic conduct, the internet provides a greater opportunity for individuals to publish their views—and for candidates to communicate directly with voters—than existed before the internet arrived. To its credit, the State does not assert that the dominance of large providers renders the First Amendment inapplicable.”

Another controversial provision of the new Florida law is one that exempts social media platforms owned by companies that also operate large theme parks in the state – an exemption that critics have suggested is connected to Disney’s massive corporate presence in the state.

In his order, Hinkle wrote that this exemption was likely to fail not only under the heightened standard of strict scrutiny, but the lower bar set by intermediate scrutiny, as well.

“The State asserted in its brief that the provision could survive intermediate scrutiny, but the proper level of scrutiny is strict, and in any event, when asked at oral argument, the State could suggest no theory under which the exclusion could survive even intermediate scrutiny,” Hinkle wrote. “The State says this means only that the exclusion fails, but that is at least questionable. Despite the obvious constitutional issue posed by the exclusion, the Legislature adopted it, apparently unwilling to subject favored Florida businesses to the statutes’ onerous regulatory burdens. It is a stretch to say the severability clause allows a court to impose these burdens on the statutorily excluded entities when the Legislature has not passed, and the Governor has not signed, a statute subjecting these entities to these requirements.”

There’s a great deal more to Hinkle’s 31-page order than we’ve covered here, of course, but from the perspective of platform operators, mainstream and adult alike, the most important aspect of the order is its bottom line: Florida’s new law is now largely unenforceable, pending full adjudication of the lawsuit. Equally significant is the inherently related fact the court has opined that the plaintiffs are likely to prevail when the case goes to trial.

“This is an important decision striking down the first wholesale attempt by a state to regulate social media platforms,” attorney Lawrence Walters told YNOT. (Walters is part of the legal team which filed an amicus brief on behalf of TechFreedom in the case.)

“As the court noted, the restrictions were about as content based as it gets,” Walters continued. “Forcing social media sites to impose different content moderation rules for candidates versus other users doomed this law from the start. Exempting social media platforms owned by theme parks was wildly discriminatory. And the idea that large platform operators could be forced to display vast amounts of content differently for users residing or ‘domiciled’ in Florida is wholly impractical. The law was obviously targeted to punish what Florida officials referred to as ‘Big Tech’ due to their disagreement with the content moderation decisions made by the companies in the past.”

Walters added that while the law may merely be “an example of political grandstanding, it is unfortunate that Florida lawmakers discarded their oath to protect and defend the constitution by passing a bill that so obviously violated the First Amendment.”

“Substantial court time, tax dollars, and private resources have been consumed in the effort to challenge this law and protect constitutional rights,” Walters added. “Regrettably, we expect that the case will be appealed resulting in further consumption of time and resources. Ultimately, we expect that the appellate court will recognize the patent constitutional defects in the law and hopefully set binding precedent that will dissuade future lawmakers from attempting to pass similar bills in the future.”

To read Hinkle’s order in full, click here.