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Thursday, July 1, 2021

Judge blocks Florida's social media deplatforming ban

Posted By on Thu, Jul 1, 2021 at 9:37 AM

click to enlarge PHOTO VIA FACEBOOK/RON DESANTIS
  • Photo via Facebook/Ron DeSantis

Calling it “riddled with imprecision and ambiguity,” a federal judge Wednesday blocked a new state law targeting social-media behemoths such as Facebook and Twitter that can strip politicians and other users from their platforms.

U.S. District Judge Robert Hinkle issued a preliminary injunction as he sided with online-industry groups NetChoice and the Computer & Communications Industry Association, which filed the lawsuit challenging the measure pushed by Gov. Ron DeSantis and approved by Republican lawmakers this spring.



“The legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal. Balancing the exchange of ideas among private speakers is not a legitimate government interest,” Hinkle wrote in Wednesday’s 31-page order.

The controversial law seeks to prevent large social-media platforms from banning political candidates from their sites and to require companies to publish —- and apply consistently —- standards about issues such as banning users or blocking their content.

The industry groups sought an injunction to block the law from going into effect on Thursday, arguing that the measure violates the First Amendment rights of private companies and would harm their ability to moderate content on their platforms.

Trying to flip the First Amendment argument, lawyers for the state maintained that the social-media platforms are engaging in censorship and violating users’ speech rights.

But Hinkle scolded the state for its position.

“First, the state has asserted it is on the side of the First Amendment; the plaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at odds with accepted constitutional principles,” the judge wrote.

The “concentration of market power among large social-media providers does not change the governing First Amendment principles,” Hinkle 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,” he added.

The plaintiffs “are likely to prevail on the merits of their claim that these statutes violate the First Amendment,” Hinkle wrote.

“Like prior First Amendment restrictions, this is an instance of burning the house to roast a pig,” the judge said.

Hinkle found that the state law also is flawed because it targets only large companies, applying to platforms that have annual gross revenues of more than $100 million or have at least 100 million monthly individual “participants” globally, such as Twitter, Facebook and YouTube.

Under the law, companies that remove political candidates from platforms could face fines of $250,000 a day for statewide candidates and $25,000 a day for other candidates.

“As the Supreme Court has recognized, discrimination between speakers is often a tell for content discrimination,” Hinkle wrote. “That is the case here. The state has suggested no other basis for imposing these restrictions only on the largest providers.”

The new law includes a provision that shields theme-park operators from the restrictions.

Hinkle said that the law “discriminates on its face among otherwise-identical speakers: between social-media providers that do or do not meet the legislation’s size requirements and are not under common ownership with a theme park.”

DeSantis, a close ally of former President Donald Trump, pushed the social-media crackdown after Twitter and Facebook blocked Trump from their platforms after his supporters rampaged at the U.S. Capitol on Jan. 6.

“Day in and day out, our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley,” the governor said at a bill-signing ceremony last month.

DeSantis’ office did not immediately respond to a request for comment late Wednesday. But the governor, a Harvard Law School graduate, has said he believes the state will prevail in the lawsuit.

Hinkle’s order rejected the state’s arguments that the law was not subject to “strict scrutiny” by the court. Viewpoint- and content-based restrictions on speech are subject to strict scrutiny, the judge wrote.

“Laws that are facially content-neutral, but that cannot be justified without reference to the content of the regulated speech, or that were adopted because of disagreement with the speaker’s message, also must satisfy strict scrutiny,” he said. “These principles plainly require strict scrutiny here. The Florida statutes at issue are about as content-based as it gets.”


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,” he said.

NetChoice Vice President and General Counsel Carl Szabo hailed Hinkle’s decision.

“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,” he said in a prepared statement. “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.”

During a hearing Monday, Hinkle peppered lawyers with questions and swiped at the law.

“I won’t put you on the spot and ask you if you’ve ever dealt with a statute that was more poorly drafted,” the judge asked lawyers representing DeSantis’ administration.


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