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(Photo by Joe Raedle/Getty Images)
“We are pleased the court recognized the state’s authority to rein in social media companies and upheld major portions of Florida’s law leading the way in doing so,” tweeted Florida Attorney General Ashley Moody yesterday after the 11th Circuit issued its ruling on Florida’s social media law. “We will continue to vigorously defend Florida’s authority to demand accountability from Big Tech.”
Because when you get your ass handed to you by three Republican-appointed judges, the best PR strategy is to declare victory and hope no one reads the opinion. Just ask Texas AG Ken Paxton, who congratulated himself last week when the state’s highest court dissolved an injunction against him, ruling that he never had the authority to redefine transgender healthcare as child abuse in the first place, and thus there was nothing to enjoin.
If you want an in-depth breakdown of the unanimous decision penned by US Circuit Judge Kevin Newsom, Mike Masnick over at Techdirt has you covered. But brass tacks, the court affirmed that the First Amendment gives social media companies the right to do all the things conservatives have complained about. That is, even if it were true that Facebook and Twitter were shadow banning Republicans and suppressing conservative news sites — and it very clearly is not — that would be protected speech.
Because refusing to host specific content is definitionally an editorial judgment protected by the First Amendment, and courts have long held that government cannot regulate this type of expressive speech without a compelling state interest and a demonstration that the regulation is narrowly tailored, i.e. strict scrutiny. And all the carping by Florida Governor Ron DeSantis and his Republican allies in the legislature that Twitter is doing cancel cultures to conservatives just proves the point that the site is making a protected editorial decision:
Here, for instance, the driving force behind S.B. 7072 seems to have been a perception (right or wrong) that some platforms’ content-moderation decisions reflected a “leftist” bias against “conservative” views—which, for better or worse, surely counts as expressing a message. That observers perceive bias in platforms’ content-moderation decisions is compelling evidence that those decisions are indeed expressive.
Indeed, as the court points out, Florida’s insistence on viewpoint-neutrality, if taken to its logical conclusion, would force vegan websites to host recipes for spare ribs while YouTube Kids would have to tolerate content from PornHub — a truly perverse result when DeSantis is arguing that public school teachers have no First Amendment right to mention going to the grocery store with their same-sex spouses.
Florida attempts to get around this issue by suggesting that social media sites are so necessary to modern life that they are functionally common carriers, obligated to take all comers. Or that they can be defined as such by legislative fiat — really executive fiat, since l’état c’est DeSantis. But the court isn’t having it:
At the outset, we confess some uncertainty whether the State means to argue (a) that platforms are already common carriers, and so possess no (or only minimal) First Amendment rights, or (b) that the State can, by dint of ordinary legislation, make them common carriers, thereby abrogating any First Amendment rights that they currently possess. Whatever the State’s position, we are unpersuaded.
And so the vast majority of Florida’s social media law, along with its very premise that there is a compelling state interest in promoting content neutrality, got tossed. Platforms can ban political candidates; they can “shadow ban” or deprioritize posts about politicians; they can censor news outlets; they can change their policies as often as they like; they can use algorithms to curate content without allowing users to opt out; and they don’t have to offer a detailed explanation for any of these decisions, which are, again, editorial and thus protected by the First Amendment.
The only provisions that survive relate to individual consumers’ relationship to the platform. So the sites can be forced to publish their standards and any rule changes, disclose free political advertising given to any candidate, disclose page view counts to an individual user, and allow deplatformed users to retrieve their data after being booted. And, as Techdirt’s Cathy Gellis points out, the court left open the possibility that these provisions might also be blocked if they’re proven to be too burdensome to sustain or pre-empted by Section 230.
It’s hardly a resounding victory for DeSantis, who promised when he signed the bill that, “If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.”
This bill was never about making sure users didn’t lose access to their data when they got tossed off a platform, as Lieutenant Governor Jeannette Nuñez made even more clear than her boss.
“Many of our constituents know the dangers of being silenced or have been silenced themselves under communist rule,” she arglebargled. “Thankfully in Florida we have a Governor that fights against big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative.”
In fact, both the District and Circuit Courts have now affirmed the right of social media platforms to censor anything they want, be it Nazis, radical leftists, or fetish pornography. Because that is how free speech goes. And unlike last week’s atrocity from the Fifth Circuit reinstating Texas’s preposterous social media law, the 11th Circuit actually bothered to explain its reasoning.
So Florida AG Ashley Moody can put on that flight suit and declare “Mission Accomplished,” because lying about a court decision is also First Amendment protected activity. Whether it’s becoming of an officer of the court, though, is another matter entirely.
Netchoice v. AG State of Florida [Third Circuit Opinion]
Liz Dye lives in Baltimore where she writes about law and politics.
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