Federal appeals court hobbles DeSantis’ attack on social media companies; cites First Amendment

Three-judge panel: State can’t force these companies to comply with its ideas about what speech is permissible

By: - May 23, 2022 4:25 pm

Volunteers unfurl a giant banner printed with the Preamble to the U.S. Constitution. Photo by Chip Somodevilla/Getty Images.

Gov. Ron DeSantis was certain in his faith that a federal appeals court would side with him on his attempt to punish social media companies that he accuses of censoring conservative voices.

On Monday that court — the U.S. Court of Appeals for the Eleventh Circuit — let him down.

It decided against him on every major element of SB 7072, passed in 2021 after social media platforms kicked out Donald Trump after his reelection defeat, leading to the Jan. 6 attack on the U.S. Capitol.

The law’s private lawsuits allowing users to seek as much as $25,000 for every day a site kicked them off, deleted a post, or used its algorithms to limit exposure to their posts? Blocked.

Penalties of up to $250,000 for deplatforming candidates seeking statewide office and $25,000 for other office seekers, per day? Blocked.

Allowing social media users to opt out of a platform’s algorithms and insist they feed them posts in order of the time they were written? That’s blocked, too.

Requiring them to issue detailed explanations to every user whose content they quashed? Not enforceable.

The court blocked the state from enforcing every one of these sanctions provided for under the law, concluding they violated social media companies’ First Amendment rights.

Forced speech

Essentially, a three-judge panel of the appeals court reasoned, the state was not allowed to force these companies to comply with its ideas about what speech is permissible.

“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,” Judge Kevin Newsom wrote.

Elbert P. Tuttle Courthouse. Credit: United States Court of Appeals for the Eleventh Judicial Circuit.

NetChoice and the Computer and Communications Industry Association, two industry groups, sued to block enforcement of the law.

CCIA President Matt Schruers issued a written statement praising the outcome.

“This ruling means platforms cannot be forced by the government to disseminate vile, abusive, and extremist content under penalty of law. This is good news for internet users, the First Amendment, and free speech in a democracy.” Schruers said.

“When a digital service takes action against problematic content on its own site 一 whether extremism, Russian propaganda, or racism and abuse 一 it is exercising its own right to free expression.

Newsom was a Donald Trump appointee. Joining the opinion were judges Gerald Bard Tjoflat, a Gerald Ford appointee, and Julie Carnes, placed on the court by Barack Obama.

U.S. District Judge Robert Hinkle in Tallahassee last July issued an injunction against enforcing the law, citing in part open animus by DeSantis and other state leaders toward companies including Twitter, Facebook, and YouTube.

Monday’s ruling extends that injunction pending further proceedings on the merits or an appeal to the full Eleventh Circuit or U.S. Supreme Court.

The Phoenix has asked the governor’s press office for comment but hasn’t heard back yet.

The court upheld language requiring platforms to explain why they scrub a post and to disclose view counts for posts. However, it would be unduly burdensome for the companies to explain every one of the billions of posts they pull from their feeds, it said.

In its 67-page ruling, the Eleventh Circuit cited a line of precedents striking down efforts to compel newspapers, utilities, or cable companies to publish certain viewpoints, extending to organizers of Boston’s St. Patrick’s Day parade’ right to block participation by a gay-rights group.

‘Editorial judgments’

These cases “establish that a private entity’s decisions about whether, to what extent, and in what manner to disseminate third-party-created content to the public are editorial judgments protected by the First Amendment,” the court said.

The opinion also cited two Eleventh Circuit precedents — one upholding Amazon.com’ right to exclude a religious designated hate group from its charitable program and another sustaining a political group’s right to distribute free food in a city park as protected speech.

Under either line of cases, “social-media platforms exercise editorial judgment that is inherently expressive. When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction breaches of their community standards, they engage in First-Amendment-protected activity,” the court said.

“Like parade organizers and cable operators, social-media companies are in the business of delivering curated compilations of speech created, in the first instance, by others,” it continued.

“Just as the parade organizer exercises editorial judgment when it refuses to include in its lineup groups with whose messages it disagrees, and just as a cable operator might refuse to carry a channel that produces content it prefers not to disseminate, social-media platforms regularly make choices not to propound a particular point of view.”

Furthermore: “A reasonable person would likely infer some sort of message from, say, Facebook removing hate speech or Twitter banning a politician. Indeed, unless posts and users are removed randomly, those sorts of actions necessarily convey some sort of message — most obviously, the platforms’ disagreement with or disapproval of certain content, viewpoints, or users.”

Expressive decisions

Gov. Ron DeSantis addresses the press on July 19, 2021. Source: Screenshot/Florida Channel

Even if, as DeSantis and others contended, the social media giants were censoring conservatives, that, “for better or worse, surely counts as expressing a message. That observers perceive bias in platforms’ content-moderation decisions is compelling evidence that those decisions are indeed expressive,” the court said.

The court waived aside the state’s arguments that platform curation isn’t expressive because the companies leave the vast majority of posts untouched.

“With respect, the state’s argument misses the point. The ‘conduct’ that the challenged provisions regulate — what this entire appeal is about — is the platforms’ ‘censorship’ of users’ posts — i.e., the posts that platforms do review and remove or deprioritize. The question, then, is whether that conduct is expressive. For reasons we’ve explained, we think it unquestionably is.”

The court rejected the state’s argument that these platforms perform serve as “common carriers,” or utilities necessary to get along in life, which can’t discriminate against customers. As such, they’d be entitled to less First Amendment protection.

“At the outset, we confess some uncertainty whether the state means to argue (a) that platforms are already common carriers, and so possess no (or only minimal) First Amendment rights, or (b) that the state can, by dint of ordinary legislation, make them common carriers, thereby abrogating any First Amendment rights that they currently possess. Whatever the state’s position, we are unpersuaded,” the court said.

That’s because the platforms have never behaved like common carriers; rather, they tend to publish terms of service and punish users who disobey those rules. Second, they’re not like broadcasters constrained by the limited bands of airwaves but more like cable companies, publishers, pamphleteers, and bookstores that enjoy robust First Amendment protections, the court said.

Communications Decency Act

On top of that, the Communications Decency Act of 1996 flatly declares that internet companies are not common carriers, the court added. “In particular, it explicitly protects internet companies’ ability to restrict access to a plethora of material that they might consider ‘objectionable.’”

The state has no authority to unilaterally declare them common carriers, either.

“Neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier,” the court said.

“Quite the contrary, if social-media platforms currently possess the First Amendment right to exercise editorial judgment, as we hold it is substantially likely they do, then any law infringing that right — even one bearing the terminology of ‘common carriage’ — should be assessed under the same standards that apply to other laws burdening First-Amendment-protected activity.”

That they are so big and powerful changes nothing, the court continued.

“The Supreme Court has squarely rejected the suggestion that a private company engaging in speech within the meaning of the First Amendment loses its constitutional rights just because it succeeds in the marketplace and hits it big.”

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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. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.

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