Gov. Ron DeSantis’ administration is asking a federal appeals court to undo a preliminary injunction that put on hold a controversial law targeting social-media behemoths such as Twitter and Facebook that can strip politicians and other users from their platforms.
The request Tuesday for the 11th U.S. Circuit Court of Appeals to lift the injunction followed a June 30 ruling
by U.S. District Judge Robert Hinkle, who sided with online-industry groups that argued the state law —- one of DeSantis’ top legislative priorities —- runs afoul of the First Amendment.
NetChoice and the Computer & Communications Industry Association filed the lawsuit challenging the law, which 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.
Hinkle issued a preliminary injunction blocking the law a day before the new statute was slated to go into effect on July 1.
The industry groups argued that the measure violates the First Amendment rights of private companies and would harm their ability to moderate content on their platforms.
Tuesday’s notice to appeal, as is common, did not detail the state’s arguments.
In previous court filings, however, lawyers representing the DeSantis administration tried to flip the First Amendment arguments, maintaining that the social-media companies are engaging and quashing users’ speech rights.
But in a 31-page order last month, Hinkle chided 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 in May.
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