The 11th Circuit federal court upholds blocking Florida's social media “censorship” law to protect First Amendment rights, as SCOTUS weighs Texas' similar law

Protocol 2022-05-24 Issie Lapowsky

Context & Ripple Effects

Florida’s law had already been stopped by a federal preliminary injunction before the 11th Circuit affirmed that result. The ruling preserves that posture while a Texas appellate court had just allowed Texas to enforce a comparable moderation law.

The conflicting appellate outcomes put the Supreme Court at the center of the dispute over whether states may limit platforms’ content-moderation decisions.

First-order effects

Florida remains unable to enforce its Stop Social Media Censorship Act while the injunction stands.
Social-media services covered by Florida’s law retain the moderation discretion the 11th Circuit treated as protected by the First Amendment.

Second-order effects

Texas and Florida now present opposing judicial outcomes for the Supreme Court to resolve as it considers Texas’ similar law.
Platforms face divergent state-level rules: Florida’s restrictions stay blocked while Texas’s law had been permitted to take effect by its appeals court.

Third-order effects

A Supreme Court resolution would set the constitutional boundary between state efforts to regulate platform moderation and platforms’ asserted editorial rights.
The litigation points toward content moderation becoming a durable federal constitutional issue rather than a policy question settled independently by individual states.

The trend: US states are testing whether platform-content rules can override social-media companies’ First Amendment claims, with federal courts determining the limits.

Discussion

@agashleymoody AG Ashley Moody on x
We are pleased the court recognized the state's authority to rein in social media companies and upheld major portions of Florida's law leading the way in doing so. We will continue to vigorously defend Florida's authority to demand accountability from Big Tech.
@b_fung Brian Fung on x
So, we now have the 11th Circuit and the 5th Circuit basically saying opposite things about social media moderation, which further highlights the stakes of the pending Supreme Court decision.
@cat_zakrzewski Cat Zakrzewski on x
JUST IN: An appeals court has ruled in favor of the tech companies in the legal battle over Florida's social media law. Read the full opinion from the 11th circuit here https://media.ca11.uscourts.gov/ ...
@debbieforfl Debbie Mucarsel-Powell on x
Misinformation by Florida's @AGAshleyMoody The court ruled AGAINST @GovRonDeSantis citing “violation of first amendment” for wanting to address the platforms' alleged bias against conservatives. DeSantis lost AGAIN for violating the constitution. https://twitter.com/...
@jameeljaffer @jameeljaffer on x
Florida was arguing that its law doesn't implicate the First Amendment at all, because (it said) the platforms don't engage in protected expression when they moderate or curate user content. /2
@aricohn Ari Cohn on x
30/ But the most important disclosure provision, the one that requires platforms to provide detailed justification for their (constitutionally protected) moderation decisions, fails as burdensome and speech-chilling. https://twitter.com/...
@reckless Nilay Patel on x
This is an important decision but more importantly it feels like the power of the government to make speech regulations is headed straight to a Supreme Court full of judges who suck https://www.theverge.com/...
@aricohn Ari Cohn on x
24/ As it should, the court notes that there is a lack of any constitutionally sufficient interest to support these government efforts to to regulate expression. And the court does not think much of Florida's all-in shove on the “no First Amendment issue” bluff. https://twitter.c…
@jameeljaffer @jameeljaffer on x
The platforms, by contrast, were arguing that the First Amendment means, essentially, that they can't be regulated at all. /3
@cjciaramella @cjciaramella on x
Owning the libs by passing laws so bad that not even the 11th Circuit will throw you a bone. https://twitter.com/...
@bendiamondfl Ben Diamond on x
Another example of the Governor and his Legislature ignoring the Constitution and leaving Florida taxpayers on the hook for the legal fees. https://apnews.com/...
@reckless Nilay Patel on x
Clarence Thomas is 100 percent about to write a decision saying government speech regulations are good
@jameeljaffer @jameeljaffer on x
You wouldn't know it from all the spin, but the most important thing about the Eleventh Circuit's decision striking down (most of) Florida's social-media law is that the court rejected *both* parties' First Amendment theories. 🧵
@davidgreene David Greene on x
the opinion is here: https://media.ca11.uscourts.gov/ ...
@jameeljaffer @jameeljaffer on x
Florida's theory would give governments broad power to censor and distort public discourse online. The platforms' theory would make it nearly impossible for government to enact even narrow laws intended to serve democratic values. /5
@caseynewton Casey Newton on x
Clarence Thomas is about to hear the dream case he basically invited last year, making content moderation illegal. Can he find four more votes? https://www.platformer.news/ ... https://twitter.com/...
@toomuchme Danny Rivero on x
Appellate court just agreed with district that Florida passed a blatantly unconstitutional law, ironically pitched as being pro-First Amendment https://twitter.com/...
@steve_vladeck Steve Vladeck on x
This is quite a take on a ruling from a deeply conservative Eleventh Circuit panel (i.e., judges most likely to be sympathetic) that unanimously kept the key parts of Florida's law on hold because they're “substantially likely” to *violate* the First Amendment. https://twitter.co…
@aronberg Dave Aronberg on x
Florida's anti-social media law is such an obvious violation of the First Amendment that a three judge panel from the conservative 11th Circuit (led by a Trump appointee) today found all its major parts unconstitutional...and the Supreme Court will do the same.
@rico_rants Di'Rico L. Baker on x
Kinda blows my mind that, much like the voter fraud cases, conservative judges, who are no doubt sympathetic to conservative arguments, are just not buying the bullshit conservatives are peddling. https://twitter.com/...
@jameeljaffer @jameeljaffer on x
Don't listen to the spin. This wasn't a total victory for either side. But it's a good decision for the First Amendment, and for democracy. /END
@mmasnick Mike Masnick on x
No matter what, the ruling *clearly* debunks a TON of ridiculous talking points that people make to argue that states can force websites to moderate in a certain way.
@jameeljaffer @jameeljaffer on x
The Eleventh Circuit rejected both of these theories. Which is good, because neither would serve our society very well. /4
@wexler Nu Wexler on x
Lose the legal/policy fight but win the news cycle (cruise ships, mask mandates, Disney, social media regulation ...) https://www.protocol.com/...
@aricohn Ari Cohn on x
25/ Don't know how many times courts have to say it, but there is no legitimate government interest in leveling the playing field for speech. That's a good thing. The power to level the playing field for speech is calling out loudly for abuse by whoever is in power. https://twitt…
@davidgreene David Greene on x
Ooh. I like this part. 11th responds to argument that 1st Amendment doesn't apply since most posts are reviewed before publication: doesn't matter (natch) since the law targets the decisions that are made not those that aren't. https://twitter.com/...
@aricohn Ari Cohn on x
29/ The disclosure requirements get a little bit of a nicer treatment from the panel, finding that for some of the provisions, there is a legitimate govt interest in making platforms disclose their rules and any changes, and view counts for posts. https://twitter.com/...
@jeffweineros Jeff Weiner on x
Yet another ruling that affirms what @Scott_Maxwell has been saying: Florida taxpayers are paying big $$$ to defend laws that everyone involved should have known were unconstitutional https://www.orlandosentinel.com/ ... https://twitter.com/...
@aricohn Ari Cohn on x
10/ The panel wisely noted that not removing content itself sends a message that the platform does not consider that content to fall under the subjective definitions of one of its policies.
@dwuhlfelderlaw Daniel Uhlfelder on x
My opponent wasted our taxpayer dollars to try and get Trump back on Twitter and lost. She can't try and spin her way out of it. https://twitter.com/...
@mmasnick Mike Masnick on x
Hopefully, SCOTUS doesn't destroy it all later today.
@aricohn Ari Cohn on x
5/ After going through some examples of both political and non-political content policies, the court doesn't find any room to distinguish moderation from existing precedent with respect to its expressiveness https://twitter.com/...
@aricohn Ari Cohn on x
4/ Either way, the 11th Circuit panel does not seem to think this is even a close call. https://twitter.com/...
@mmasnick Mike Masnick on x
Did a quick writeup on everything that the 11th Circuit got right in its ruling affirming that Florida's social media content moderation bill is (mostly) unconstitutional. There's a ton of really great language in this ruling. https://www.techdirt.com/...
@mmasnick Mike Masnick on x
This is hilarious. The ruling is a near complete victory for the internet, and a near complete loss for Florida. https://twitter.com/...
@b_fung Brian Fung on x
The fact that critics can even claim that they're being discriminated against by social media platforms is evidence the companies are First Amendment speakers, the 11th Circuit says. (The judicial equivalent of pointing out a self-own.) https://twitter.com/...
@aricohn Ari Cohn on x
2/ The states passing social media laws have argued that content moderation decisions are not expressive, and don't even warrant First Amendment scrutiny, The 11th Circuit did not find that persuasive based on established First Amendment jurisprudence. https://twitter.com/...
@aricohn Ari Cohn on x
BREAKING: 11th Cir. upholds Judge Hinkle's preliminary injunction against Florida's social media law for all but one (requiring access to user data), and the disclosure provision requiring platforms to explain their moderation decisions. https://media.ca11.uscourts.gov/ ... https…
@b_fung Brian Fung on x
The 11th Circuit also holds that “it is substantially likely that social-media companies—even the biggest ones—are ‘private actors’ whose rights the First Amendment protects,” contrary to TX and FL who argued 1A isn't involved because social media firms are common carriers.
@cat_zakrzewski Cat Zakrzewski on x
The court argues that social media companies are not “common carriers,” as Republican states have argued in crafting these laws. This is a major issue in the Texas social media case in front of the Supreme Court.
@b_fung Brian Fung on x
This comes right as the Supreme Court is expected to decide — possibly as soon as today — whether to let Texas's HB 20 remain in effect. Both cases are viewed as bellwethers for the future of content moderation.
@davidgreene David Greene on x
11th Cir: Florida's social media law likely violates the First Amendment: large social media companies are not state actors who can be compelled to publish speech they don't want to publish. (More to come as I read it) https://twitter.com/...
@b_fung Brian Fung on x
For more details on the 11th Circuit's reasoning, see page 18-19 of their opinion: https://twitter.com/...
@issielapowsky Issie Lapowsky on x
NEW: The Eleventh Circuit just upheld the injunction on (most of) Florida's social media “censorship” law. This comes as the Supreme Court considers what to do about the Texas social media law that just went into effect https://www.protocol.com/...
@b_fung Brian Fung on x
NEW: The 11th Circuit has ruled for tech platforms in the suit over Florida's social media law, SB 7072 (similar to Texas's HB 20). The court holds it is “substantially likely” that FL's content moderation restrictions violate the First Amendment. https://media.ca11.uscourts.gov/…

Chronicles