The Florida law that makes it illegal for large social media sites like Facebook and Twitter to ban politicians likely violates the First Amendment, according to a unanimous ruling by a panel of three federal appeals court judges.
The ruling, released today by the US Court of Appeals for the Eleventh Circuit, upheld key portions of a preliminary injunction issued by a US District Court judge in June 2021. Florida appealed that injunction. As a result of today’s ruling, the state still cannot enforce the law’s content-moderation requirements.
“It is substantially likely that [the Florida law’s] content-moderation restrictions and its requirement that platforms provide a thorough rationale for every content-moderation action violate the First Amendment,” the appeals court judges found in today’s ruling. It wasn’t a complete loss for Florida, as the judges said it is “unlikely that the law’s remaining (and far less burdensome) disclosure provisions violate the First Amendment.” Florida can thus enforce those less burdensome disclosure requirements while litigation is pending.
The Florida law is similar to a Texas statute that prohibits large social media companies from moderating posts based on a user’s “viewpoint.” The Texas law was also blocked by a federal judge who ruled that it violates the social networks’ First Amendment right to moderate user-submitted content.
But the Texas law was revived this month by the US Court of Appeals for the Fifth Circuit. Big Tech groups have asked the US Supreme Court to reinstate the preliminary injunction. Florida and 11 other states filed a Supreme Court brief supporting Texas, saying they “have a strong interest in defending the regulatory authority of sovereign states in this area.”
Judges: Social networks have First Amendment rights
The Florida law says a social media platform “may not willfully deplatform a candidate for office” and imposes fines of up to $250,000 per day on social media companies that ban candidates for elected office. “Deplatforming” under the law includes permanent account bans and bans lasting more than 14 days.
The law also says social platforms “may not apply or use post-prioritization or shadow banning algorithms for content and material posted by or about… a candidate,” and may not “censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast.”
Florida’s law further said each platform must “apply censorship, deplatforming, and shadow banning standards in a consistent manner among its users on the platform,” but the law does not define the term “consistent,” today’s ruling noted. Here’s how the Eleventh Circuit appeals court explained why it’s blocking the key content-moderation restrictions in the Florida law:
The question at the core of this appeal is whether the Facebooks and Twitters of the world—indisputably “private actors” with First Amendment rights—are engaged in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms. The State of Florida insists that they aren’t, and it has enacted a first-of-its-kind law to combat what some of its proponents perceive to be a concerted effort by “the ‘big tech’ oligarchs in Silicon Valley” to “silenc[e]” “conservative” speech in favor of a “radical leftist” agenda. To that end, the new law would, among other things, prohibit certain social-media companies from “deplatforming” political candidates under any circumstances, prioritizing or deprioritizing any post or message “by or about” a candidate, and, more broadly, removing anything posted by a “journalistic enterprise” based on its content.
We hold that it is substantially likely that social-media companies—even the biggest ones—are “private actors” whose rights the First Amendment protects, that their so-called “content-moderation” decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms’ ability to engage in content moderation unconstitutionally burden that prerogative. We further conclude that it is substantially likely that one of the law’s particularly onerous disclosure provisions—which would require covered platforms to provide a “thorough rationale” for each and every content-moderation decision they make—violates the First Amendment. Accordingly, we hold that the companies are entitled to a preliminary injunction prohibiting enforcement of those provisions.