Florida Social Media Law Unconstitutional: Appeals Court
ST. PETERSBURG, Fla. — A Florida law intended to punish social media platforms like Facebook and Twitter is an unconstitutional violation of the First Amendment, a federal appeals court ruled Monday, dealing a major victory to companies who had been accused by GOP Gov. Ron DeSantis is accused of discriminating in favor of conservative thought.
Three-judge panel from the Atlanta-based 11th U.S. Circuit Court of Appeals unanimously concluded that it was overreach for DeSantis and the Republican-led Florida Legislature to tell the social media companies how to conduct their work under the Constitution’s free speech guarantee.
“Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it,” said Circuit Judge Kevin Newsom, an appointee of former President Donald Trump, in the opinion. “We hold that it is substantially likely that social media companies — even the biggest ones — are private actors whose rights the First Amendment protects.”
This ruling confirms the similar Florida Federal District Judge’s decision on the law. It was signed in 2021 by DeSantis. The ruling was part a larger conservative effort to depict social media firms as liberal-leaning and hostile to opinions from other viewpoints, in particular the ones of the political right.
“Some of these massive, massive companies in Silicon Valley are exerting a power over our population that really has no precedent in American history,” DeSantis said during a May 2021 bill-signing ceremony. “One of their major missions seems to be suppressing ideas.”
However, the appeals panel ruled that the tech companies’ actions were protected, with Judge Newsom writing that Facebook, Twitter, TikTok and others are “engaged in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms.”
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There was no immediate response to emails Monday afternoon from DeSantis’ press secretary or communications director on the ruling. DeSantis plans to run for reelection and may also be interested in a bid for the GOP Presidential nomination 2024. Although similar bills have been introduced in other states, he was the first governor who signed this bill into law.
The 5th U.S. allowed one of them to take effect in Texas. Circuit Court of Appeals. The tech firms involved are asking the U.S. Supreme Court to review it immediately. This decision has not been made.
The Computer & Communications Industry Association, a nonprofit group representing tech and communications companies, said the ruling represents victory for Internet users and free speech in general — especially as it relates to potentially offensive content.
“When a digital service takes action against problematic content on its own site — whether extremism, Russian propaganda, or racism and abuse — it is exercising its own right to free expression,” said CCIA President Matt Schruers in a statement.
As enacted, the law would give Florida’s attorney general authority to sue companies under the state’s Deceptive and Unfair Trade Practices Act. It would also allow individual Floridians to sue social media companies for up to $100,000 if they feel they’ve been treated unfairly.
Social media sites with over 100 million monthly users were targeted by the bill. This includes online giants such as Facebook and Twitter. But lawmakers carved out an exception for the Walt Disney Co. and their apps by including that theme park owners wouldn’t be subject to the law.
The law would require large social media companies to publish standards on how it decides to “censor, deplatform, and shadow ban.”
But the appeals court rejected nearly all of the law’s mandates, save for a few lesser provisions in the law.
“Social media platforms exercise editorial judgment that is inherently expressive. 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 for the court.
This story was contributed by Brendan Farrington and Mark Sherman, both Washington Associated Press reporters.
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