Gov. DeSantis puts faith in 11th Circuit after federal judge blocks enforcement of his Big Tech crackdown

By: - July 1, 2021 11:21 am

Gov. Ron DeSantis was in Miami on May 24, 2021, to sign his bill cracking down on Big Tech. James O’Keefe of Project Veritas is fourth from left. Source: Screenshot/Florida Channel

Gov. Ron DeSantis’ crackdown on social media companies for “cancelling” conservative voices did not take effect as scheduled on Thursday. A federal judge blocked enforcement after concluding the new law violates the First Amendment and federal law governing the sites.

U.S. District Judge Robert Hinkle in Tallahassee issued his injunction on Thursday, citing in part open animus by DeSantis and other state leaders toward the companies that kicked his political mentor, Donald Trump, off their platforms following the Jan. 6 U.S. Capitol insurrection.

The law did not pass “strict scrutiny,” he concluded — the highest level of analysis the courts apply in cases involving constitutional rights.

“To survive strict scrutiny, an infringement on speech must further a compelling state interest and must be narrowly tailored to achieve that interest,” Hinkle noted.

“These statutes come nowhere close. Indeed, the state has advanced no argument suggesting the statutes can survive strict scrutiny. They plainly cannot.”

“We are disappointed by Judge Hinkle’s ruling and disagree with his determination that the U.S. Constitution protects Big Tech’s censorship of certain individuals and content over others,” DeSantis’ office said in a written statement.

“We plan to immediately appeal to the 11th Circuit Court of Appeals. As Judge Hinkle seemed to indicate during this week’s hearing on preliminary injunction, this case was always bound for the 11th Circuit and the appeals court will ultimately make its own decision on legal conclusions. Gov. DeSantis continues to fight for freedom of speech and against Big Tech’s discriminatory censorship.”

The outcome was a win for two tech industry groups, NetChoice and the Computer and Communications Industry Association.

“When the state’s own lawyers can’t explain how the law works or even identify to whom it applies, there’s just no way that Florida’s enforcement of that law would keep users, creators, and advertisers safe from the tidal wave of offensive content and hate speech that would surely ensue,” said Carl Szabo, general counsel to NetChoice.

“America’s judiciary system is designed to protect our constitutional rights, and today’s ruling is no different, ensuring that Florida’s politically motivated law does not force Floridians to endure racial epithets, aggressive homophobia, pornographic material, beheadings, or other gruesome content just to use the internet,” he added.

“We’re pleased the court ensured that social media can remain family friendly by delaying Florida’s law from taking effect on July 1. This order protects private businesses against the state’s demand that social media carry user posts that are against their community standards. Even better, it lets social media provide high-quality services to their users while keeping them safe from the worst content posted by irresponsible users,” said Steve DelBianco, the organization’s president.

Julio Fuentes, president of the Florida State Hispanics Chamber of Commerce, also welcomed the injunction in a written statement.

“The First Amendment was written to protect private citizens and companies from government controlled and compelled speech,” Fuentes said. “It’s a beacon of our democracy and should never be weaponized in the name of politicking. Florida’s small businesses do not need our leaders to over-regulate them and, instead, need their support as they try to recover from a global pandemic.”

Key provisions of the law (SB 7072) would allow users to sue in state courts and collect as much as $100,000 for every day that a site kicked them off, deleted a post, or used its algorithms to limit exposure to their posts.

Penalties for “deplatforming” — banishing — statewide political candidates would run as high as $250,000; for other candidates, they’d be $25,000 per day. The state’s attorney general could seek those amounts through lawsuits filed under Florida’s Unfair Trade Practices Act.

Beside the First Amendment, the law violates the 1996 Communications Decency Act — which, Hinkle noted, holds that platforms cannot be “held liable for any action taken in good faith to restrict access to or availability of material that the provider …. considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

Platforms have invoked the law when banishing users for violating their terms of service — as with Trump, after his supporters participated in the Jan. 6 attack.

“The plaintiffs call this curating or moderating the content posted by users. In the absence curation, a social-media site would soon become unacceptable — and indeed useless — to most users,” Hinkle wrote.

DeSantis and legislative Republicans have argued that these sites serve as society’s town square. Hinkle rejected that claim.

“It is perhaps a nice sound bite. But the assertion is wholly at odds with accepted constitutional principles,” he wrote.

“The First Amendment says Congress shall make no law abridging the freedom of speech or of the press. The Fourteenth Amendment extended this prohibition to state and local governments. The First Amendment does not restrict the rights of private entities not performing traditional, exclusive public functions. So whatever else may be said of the providers’ actions, they do not violate the First Amendment.”

Moreover, the judge wrote, the Supreme Court rejected that argument in 1974 in a case, involving the Miami Herald, striking down a state law that required publishers to run political candidates’ rebuttals to coverage the candidates deemed objectionable.

Then, too, the argument was that local newspapers enjoyed too much power, Hinkle wrote.

But “the argument is wrong on the law; the concentration of market power among large social-media providers does not change the governing First Amendment principles. And the argument is also wrong on the facts,” he wrote.

“Whatever might be said of the largest providers’ monopolistic conduct, the internet provides a greater opportunity for individuals to publish their views — and for candidates to communicate directly with voters — than existed before the internet arrived.”

Social media sites don’t exercise anywhere near the level of editorial control that newspapers do, Hinkle conceded, leaving the vast majority of content screening to algorithms. But the control they do exercise, he continued, they usually apply to “ideologically sensitive cases.”

“Indeed, the targets of the statutes at issue are the editorial judgments themselves. The state’s announced purpose of balancing the discussion — reining in the ideology of the large social-media providers — is precisely the kind of state action held unconstitutional” in the Miami Herald case and similar Supreme Court rulings, Hinkle wrote.

Regarding animus toward the platforms, Hinkle noted DeSantis’ own words during the bill-signing ceremony: “Day in and day out, our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley. But in Florida, we said this egregious example of biased silencing will not be tolerated.”

Hinkle also cited the law’s exclusion of small providers and theme parks from scrutiny as evidence of content-based discrimination.

“The state has suggested no other basis for imposing these restrictions only on the largest providers. And even without evidence of an improper motive, the application of these requirements to only a small subset of social-media entities would be sufficient, standing alone, to subject these statutes to strict scrutiny,” he wrote.

Of the theme park exclusion, Hinkle wrote:

“Despite the obvious constitutional issue posed by the exclusion, the Legislature adopted it, apparently unwilling to subject favored Florida businesses to the statutes’ onerous regulatory burdens. It is a stretch to say the severability clause allows a court to impose these burdens on the statutorily excluded entities when the Legislature has not passed, and the governor has not signed, a statute subjecting these entities to these requirements.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.