GOP appeal judges deal serious blow to Florida social media

A Federal Court of Appeal maintained an order Monday against a controversial Florida social media law, giving tech companies a win as they prepare for another lawsuit over a similar law in Texas.

The U.S. Court of Appeals for the 11th District, which covers Florida and several other states, rejected the state’s main argument that the content moderation activities of social media companies are not constitutionally protected. However, the court allowed other provisions in the law that require social media companies to disclose more information about how they make content moderation decisions.

Florida (and Texas) laws are inspired by published opinions by conservative judge Clarence Thomas, stating that social media companies should be regulated like “common carriers” from the information age† that is, more like public utilities and not private companies creating and enforcing their own community guidelines. The three judges on the 11th Circuit Court of Appeals panel, all of whom were appointed by Republican presidents, flatly rejected that position.

Here is Circuit Judge Newsom (a Trump appointee) writing for the majority:

The question at the heart of this call is whether the Facebooks and Twitters of the world — unquestionably “private actors” with First Amendment rights — engage in constitutionally protected expressive activity when they moderate and curate the content they distribute on their platforms. . The state of Florida insists they are not. † † † We believe it is highly likely that social media companies – even the largest – are “private actors” whose rights the First Amendment protects.”

For now, major social media companies are protected from prosecution for their content moderation decisions. The state of Florida’s next step will almost certainly be a request to the Supreme Court to intervene and overturn the 11th Circuit Court decision, said Corbin Barthold, an internet policy adviser at the free speech think tank TechFreedom.

The 11th Circuit Court decision directly conflicts with the 5th District Court of Appeals decision on May 11, which took effect under the Texas Social Media Act. The tech industry groups that have challenged the laws of both Florida and Texas in court — NetChoice and CCIA — have already filed an emergency petition with the Supreme Court to block the Texas law. The 5th District Court of Appeals has yet to publish its full and final judgment on the case, but it is extremely unlikely that the court would reverse itself and block Texas law.

The conflicting opinions of the two federal appeals courts provide good reason for the Supreme Court to intervene, Barthold noted. Adding to the odds is the fact that the social media laws of Texas and Florida could affect how social networks are regulated across the country, not just for users in two states.

In any case, Barthold said, the Supreme Court won’t decide whether or not to hear the case until next month (“grant certiorari”). And even if the Supreme Court decides to hear it, it could be a year before it finally makes a decision.