Much of Florida’s law attempting to force online platforms to carry messages by candidates for office and host content by media outlets is an unconstitutional violation of the First Amendment rights of the tech companies, a trio of federal judges unanimously ruled Monday.
SB 7072, passed by Florida Republican lawmakers and supported by Gov. Ron DeSantis, threatened online platforms with fines of up to $250,000 per day to any large online platform that refused or censored communications by candidates for office in Florida. The bill had a host of terrible provisions, but the mandate that companies like Facebook and Twitter transmit the messages of candidates for office got the most media attention. Tech groups sued to try to block the bill’s implementation and quickly got an initial temporary injunction last June, ordered by US District Judge Robert Hinkle of the Northern District of Florida
The three 11th Circuit Court of Appeals judges, all of whom were appointed by Republican presidents, ruled Monday that, no, Florida cannot do what it’s trying to do here. Facebook, TikTok, Twitter, and others are private companies with First Amendment rights and cannot be required to serve as platforms for political content nor host media outlets’ content against the tech companies’ own wills.
Judge Kevin C. Newsom, who wrote the decision, bluntly rejects Florida’s efforts to try to portray social media platforms as neutral “common carriers” like phone lines or public utilities:
“Platforms are private enterprises, not governmental (or even quasi-governmental) entities. No one has an obligation to contribute to or consume the content that the platforms make available. And correlatively, while the Constitution protects citizens from governmental efforts to restrict their access. to social media … no one has a vested right to force a platform to allow her to contribute to or consume social-media content.”
Florida here invoked a couple of Supreme Court decisions to attempt to bolster its argument that they weren’t violating the First Amendment rights of tech companies by forcing them to host political candidates. One of the decisions, PruneYard Shopping Center v. Robins, has been brought up repeatedly as an example. That’s a case from 1980 where the Supreme Court ruled that a shopping mall could be forced by the state of California to allow people on the site to collect signatures for political petitions. Newsom rejects the comparison because, in that case, while the mall’s owner did not want to be forced to hosters that petition, he did not allege his own right to express himself was hindered.
In this case, the plaintiffs, NetChoice and the Computer & Communications Industry Association (trade groups representing online platforms), argued that their First Amendment rights are being compromised by being forced to carry messages that violate their own community standards and terms of service.
Newsom agreed with the plaintiffs, turning into a host of other Supreme Court decisions that have made it clear that private companies and media outlets cannot be forced to host political messages they disagree with.
Newsom also completely rejects the argument that social media platforms like Twitter are “common carriers.” He observes that while social media companies invite everybody to join, doing so requires upfront that people who create accounts follow a set of content rules. Facebook, Twitter, YouTube, and the like have never behaved as common carriers and users have never been free to post whatever they wanted. And he also notes that the Telecommunications Act of 1996 explicitly states that “interactive computer services” are not common carriers.
Furthermore, Newsom notes that Florida can’t just declare a private service to be a common carrier: “Neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier. 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 carri[age]’—should be assessed under the same standards that apply to other laws burdening First-Amendment-protected activity.”
In a footnote, Newsom also notes that the text of SB 7072 was written in such a way that it could have stopped Facebook and 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.” That’s certainly no longer a hypothetical example. Less than 10 days ago an alleged mass shooter who targeted a grocery store in Buffalo, New York, livestreamed the launch of his attack on gaming social media platform Twitch. Robby Soave noted that the decision by Twitch to remove the stream could have violated a new law in Texas that forbids platforms to censor content on the basis of the users’ viewpoint, had the incident taken place in Texas. Again, it’s another law that seeks to force social media companies to surrender their First Amendment rights and host speech.
In Texas, though, the Fifth Circuit has allowed that state’s law, HB 20, to remain intact for now. In Florida, the three judges have instead enjoined the state from enforcing much of SB 7072 and determined that it is an unconstitutional abridgment of the First Amendment rights of the targeted platforms.
Some other parts of the law that aren’t about moderation itself—like orders that these companies inform users about any rule changes (which they typically already do)—were found to be constitutional, and the panel vacated the injunction on those parts of the bill.
Otherwise, the judges are very clear here in the message: The government does not have the authority to demand that private platforms host content they find objectionable, even if they’re doing so out of some form of viewpoint bias. As private platforms protected by the First Amendment, they’re allowed to be biased.
DeSantis’ office has responded with a statement that it is “disappointed that the court continues to permit censorship. The court’s central holding that social media platforms are similar to newspapers and parades, rather than common carriers that transmit others’ messages, is stuefying. know differently.” They’re considering an appeal.
Remember this ruling later this year when the Supreme Court hears the arguments for 303 Creative LLC v. Elenis. That case, coming out of Colorado, focuses on whether a small web page designer and host can be forced to present pages for gay weddings, even though the owner’s religious beliefs oppose same-sex marriage recognition.
This case is being framed as though it’s about LGBT discrimination, but it’s really not. If Twitter can’t be forced to host speech that violates the standards of the company, it should most certainly also be true that a small web host company can’t be forced to host websites for gay weddings. Anybody who thinks it’s wrong for Florida and Texas to force Facebook to carry content they decide is offensive should also disagree with Colorado doing the same thing to a small business.