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Florida’s social media moderation ban is probably unconstitutional, says court

A US appeals court says Florida’s ban on much social media moderation likely violates the First Amendment, setting up a legal showdown over social networks’ speech rights. Today, the Eleventh Circuit Court of Appeals upheld most of an earlier court order blocking Florida’s SB 7072 while a lawsuit proceeds. It directly contradicts a recent ruling over Texas’ similar moderation ban, setting up a split that the Supreme Court could step in to resolve.

The Eleventh Circuit ruling focuses on whether Florida’s law — which heavily restricts suspensions, fact-checking, and content removal involving political candidates and media enterprises — 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 phone company, making their moderation calls (in its line of reasoning) ineligible for First Amendment protection. The ruling, delivered by Circuit Judge Kevin Newsom, disagrees.

“Platforms are private enterprises, not governmental (or even quasi-governmental) entities,” declares Newsom’s opinion. “No one has a vested right to force a platform to allow her to contribute to or consume social media content.” The court also determines that “social media platforms aren’t ‘dumb pipes’” — in other words, they’re not common carriers. Instead, they’re digital spaces that are actively curating a community by creating terms of service and deciding how to deliver and prioritize content. In Newsom’s words, “when a platform selectively removes what it perceives to be incendiary political rhetoric, pornographic content, or public-health misinformation, it conveys a message and thereby engages in ‘speech’ within the meaning of the First Amendment.”

As Mike Masnick at Techdirt lays out, the ruling tears apart much of the legal logic that’s underpinned conservative attempts to restrict social network content moderation. It also addresses a particular concern that cropped up after the recent shooting in Buffalo: 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 a mass shooter’s killing spree if it happened to be reposted by an entity that qualifies for ‘journalistic enterprise’ status,” writes Newsom.

That’s not the end of the problems, either. In one section, the ruling notes that “the provision is so broad that it would prohibit a child-friendly platform like YouTube Kids from removing — or even adding an age gate to — softcore pornography posted by PornHub, which qualifies as a ‘journalistic enterprise’ because it posts more than 100 hours of video and has more than 100 million viewers per year.”

The Eleventh Circuit finds that most of the law’s provisions, including its bans on content moderation, should remain blocked by the lower court’s injunction. It wasn’t required to rule on one of the law’s weirdest provisions, an exemption for companies that operate 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’s ruling does vacate some parts of the earlier injunction that don’t involve directly restricting moderation, allowing parts of the rule to take effect while the lawsuit is ongoing. That includes rules requiring sites to disclose changes to their terms of service and provide information about how many people have viewed a given piece of content. (The ruling notably does block an onerous disclosure rule that would have made platforms offer a “thorough rationale” for any moderation decision.) Florida Attorney General Ashley Moody characterized these sections as a victory 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 overturned a lower court’s block of Texas HB 20 without explanation. HB 20 has minor differences from Florida’s law, but it’s equally (or possibly more) sweeping, banning any kind of moderation based on a user’s “viewpoint” and theoretically forbidding web services from ceasing to operate in Texas. A Fifth Circuit panel was sympathetic to the rule, with judges suggesting that social networks were no different from internet service providers or the phone company.

NetChoice and the CCIA filed an emergency petition with the Supreme Court over HB 20. So far, the court hasn’t made a call — but the Florida ruling offers some mostly good news for platforms in the meantime.

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