A U.S. appeals court says Florida’s ban on much moderation on social media likely violates the First Amendment, sparking a legal battle over social networks’ voice rights. Today, the Eleventh Circuit Court of Appeals upheld most of a previous court order that blocked Florida’s SB 7072 while a lawsuit was pending. It directly contradicts a recent ruling on a similar mitigation ban in Texas, creating a split that the Supreme Court could resolve.
The Eleventh Circuit Ruling focuses on whether Florida’s law — which heavily 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 “common carriers” akin to a telephone company, rendering their moderation calls (in his line of reasoning) ineligible for First Amendment protection. The ruling, handed down by Circuit Judge Kevin Newsom, disagrees.
“Platforms are private enterprises, not government agencies (or even quasi-government entities),” explains Newsom’s opinion. “Nobody has the vested right to force a platform to allow it to contribute to or make use of social media content.” The court also ruled that “social media platforms are not ‘dumb pipes'” – in other words, they are not ordinary carriers. Instead, they are digital spaces that actively manage a community by creating terms of service and deciding how content is delivered and prioritized. In Newsom’s words, “when a platform selectively removes what it deems to be inflammatory political rhetoric, pornographic content, or public health disinformation, it is conveying a message and engaging in ‘speech’ within the meaning of the First Amendment.” .”
Like Mike Masnick on tech dirt explains, the ruling tears apart much of the legal logic underlying conservative efforts to limit the moderation of social network content. It also addresses a specific concern that arose after the recent Buffalo shooting: whether these laws would force platforms to carry a video of the mass murder. The answer, it concludes here, is yes. “SB 7072 would seemingly prohibit Facebook or Twitter from removing a video of the massacre of a mass shooter if it were reposted by an entity that qualifies for ‘journalism enterprise’ status,” Newsom writes.
That’s not the end of the trouble either. In one section, the ruling notes that “the provision is so broad that it would prohibit a kid-friendly platform like YouTube Kids from removing softcore porn posted by PornHub or even adding an age limit, which qualifies as a ‘journalistic company’.” ‘ because it posts more than 100 hours of video and has more than 100 million viewers a year.”
The Eleventh Circuit believes that most provisions of the law, including the prohibition on content moderation, should remain blocked by the order of the lower court. It was not required to rule on one of the law’s strangest provisions, an exemption for companies operating a theme park – because that piece of the law was repealed in retaliation for Disney’s criticism of Florida’s “Don’t Say Gay” law.
The Eleventh Circuit ruling ends some parts of the earlier injunction that does not directly restrict moderation, allowing parts of the rule to take effect while the lawsuit is underway. That includes rules that require sites to post changes to their terms of service and provide information about how many people viewed a particular piece of content. (The pronunciation in particular is doing block a cumbersome disclosure rule that would have provided platforms with a “thorough reason” for any moderation decision.) Florida Attorney General Ashley Moody featured these sections as a win on Twitter, saying the court had “recognized the state’s authority to rein in social media companies”.
Most importantly, the decision puts the Eleventh Circuit at odds with the Fifth Circuit — which recently quashed a block of Texas HB 20 from a lower court without explanation. HB 20 has minor differences from Florida law, but it’s equally (or possibly more) drastic, prohibiting any form of moderation based on a user’s “point of view” and theoretically banning web services from operating in Texas . A Fifth Circuit panel was sympathetic to the rule, with judges suggesting that social networks were no different than Internet service providers or the phone company.
NetChoice and the CCIA have filed an emergency appeal with the Supreme Court over HB 20. So far, the court has not made a phone call, but the Florida ruling offers mostly good news for platforms in the meantime.