Last night, a federal judge barred enforcement of a Florida law that aimed to force social media sites to host speech they found objectionable. S.B. 7072 clearly violated the First Amendment, ruled Robert Hinkle, U.S. District Judge for the Northern District of Florida. While it could take months for Hinkle to formally resolve the lawsuit, Florida has declared that it will appeal immediately to the U.S. Court of Appeals for the Eleventh Circuit. The decision marks a major blow for Florida Governor Ron DeSantis, who championed the bill, and suggests that similar legislation in Texas will also be struck down if it passes in a special session this month.
“The decision firmly rejects the notion that the government can regulate social media in the interest of ‘balancing the discussion’ or remedying alleged bias by platforms,” said Ari Cohn, Free Speech Counsel at TechFreedom. “Editorial judgments, especially in the most ‘ideologically sensitive cases,’ are fully protected by the First Amendment. The government is not free to infringe on those constitutional rights just because it wants to create a new right to use someone else’s platform for expression.”
TechFreedom filed an amicus curiae brief in the case arguing that social media platforms are not common carriers and that Florida’s attempt to evade the First Amendment was unsupported by the cases it cited to. Judge Hinkle agreed, but saw little need to delve further into the issue.
“During oral arguments, Judge Hinkle appeared skeptical of Florida’s attempt to sidestep the First Amendment by simply calling platforms common carriers,” continued Cohn. “His ruling confirms what we have been saying all along: common carriage isn’t a magic spell that makes the First Amendment disappear. Florida will doubtless rely on this argument at the Eleventh Circuit, but we are confident the appeals court will agree: social media platforms aren’t common carriers, and even if they were, they’d still have broad discretion to refuse to carry content they believe violates their community standards.”
“Laws that regulate content moderation inherently intrude on editorial judgment about how to present and organize content,” concluded Cohn. “Judge Hinkle correctly ruled that those judgments are constitutionally protected. Other states considering similar legislation should think twice before committing themselves and their constituents to a costly and embarrassing battle against the First Amendment. Even if social media platforms did have an ideological bias, the government can no more police that bias than it can the bias of any other media company or publication.”
We can be reached for comment at email@example.com. Read our related work:
- Our amicus brief in NetChoice v. Moody (June 11, 2021)
- A Space for Everyone? Debating Online Platforms and Common Carriage Rules, UCLA Law (June 4, 2021)
- Trading Big Tech for Big Government Will Backfire for Conservatives, Daily Caller (June 2, 2021)
- Florida Bill Shows Why Social-Media Speech Regulations Violate First Amendment (May 24, 2021)
- Governor’s Social Media Bill Is Unconstitutional and Unwise, Tallahassee Democrat (April 30, 2021)
- Justice Thomas’s Misguided Concurrence on Platform Regulation, Lawfare (April 14, 2021)
- Debate: Social Media, Free Speech, and Section 230, Federalist Society (April 4, 2021)
- No, Florida Can’t Regulate Online Speech (March 24, 2021)
- Politics, Not Pragmatism, Is Driving Florida Anti-Big Tech Bills, Daily Caller (March 23, 2021)
- No, Florida Can’t Regulate Online Speech, Lawfare (March 12, 2021)
- The Wall Street Journal Misreads Section 230 and the First Amendment, Lawfare (February 3, 2021)
TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.