The preliminary injunction against the state’s social media ban on minors won’t last, an appeals court concluded this week.
Two judges on a three-judge panel told the state Tuesday it may begin enforcing a 2024 law that prohibits young Floridians from using social media while litigation plays out.
“HB3 is now the law of the state and will be enforced. We’re putting all big tech companies on notice: endanger our kids and find out what happens!” Uthmeier posted to his personal X account Tuesday, posting on his official account that his office “will aggressively enforce this law.”
In June, a federal district court judge granted a preliminary injunction against enforcing the law. It had previously denied a request for preliminary injunction before the social media giants amended their complaint.
Tuesday, the U.S. Court of Appeals for the Eleventh Circuit halted the preliminary injunction.
“Another win on appeal, this time upholding Florida’s protections for kids against predatory social media companies. We put parents and kids first!” Gov. Ron DeSantis posted to his personal X account.
The law, a focus of former House Speaker and now candidate for governor Paul Renner, passed in 2024 and prohibits Floridians younger than 14 from having social media accounts on platforms that deploy “addictive features.” The law, which scored bipartisan support, also requires parental consent for youngsters age 14 and 15 to have accounts on those same platforms.
The circuit court majority, comprising Judges Elizabeth Branch and Barbara Lagoa, both Donald Trump appointees, said the attorney general has made a “strong showing of a likelihood of success.”
Largely an argument of First Amendment infringement, the majority opinion and and a dissent written by Judge Robin Rosenbaum, a President Barack Obama appointee, conflict on whether the law should fall under strict or intermediate First Amendment scrutiny.
The state has argued that the law does not prohibit the use of social media, instead just apps that use addictive features like “infinite scrolling,” push notifications or alerts, “personal interactive metrics” regarding likes or shares, “auto-play video,” and “live-streaming.” The circuit majority agreed, conflicting with the district court ruling.
Platforms, upon notification from a minor’s parent, must terminate a minor’s account, the law requires.
The suit was filed by NetChoice and Computer and Communications Industry Association. Proceedings will continue over the merits of the law itself.
NetChoice represents Facebook, Instagram, Snapchat, Reddit, YouTube, Pinterest, Google, and other tech giants. CCIA also represents Facebook and Instagram, Google, Pinterest, and others.
“NetChoice is disappointed in the Eleventh Circuit’s ruling allowing Florida’s censorship law to take effect while Florida continues to appeal our injunction. Briefing has finished, and we look forward to the opportunity to explain the law’s constitutional problems to the Court directly,” Paul Taske of NetChoice said in an online statement.
“We will consider all available options to ensure Floridians’ online communication is safe and free. Florida’s censorship regime not only violates its citizens’ free speech rights but also makes all users — especially minors — less safe.”
The majority wrote that the law is “likely content neutral” and satisfies the intermediate scrutiny test.
“The Attorney General is likely to show that the legislature chose the regulation it did, not because it is easier than alternatives, but because it is the most effective way of achieving its interest,” Branch wrote.
“It is unlikely that HB3 inappropriately curtails any First Amendment rights. And the compliance costs plaintiffs might incur do not outweigh the State’s interest in enforcing its lawful regulation,” Branch wrote.
Dissent
In a lengthy dissent, Rosenbaum said the law is “plainly unconstitutional under the First Amendment. In fact, it’s plainly unconstitutional on its face.”
Rosenbaum finds it to be content-based, which would put it under strict scrutiny as opposed to intermediate scrutiny. The absence of streaming services like Hulu and Disney+ in the lawsuit but the inclusion of other social media platforms signal that the law is content-based, Rosenbaum wrote.
“The Act directly regulates expression in at least two ways. First, the Act inserts the state of Florida into users’ decisions about whether and how to speak online,” Rosenbaum wrote. Second, is that the law “interferes with the platforms’ editorial choices about which users can join the platform and about what content to display to those users.”
Rosenbaum points to the majority classifying age verification as imposing a “modest” burden on adult speech when it requires providing personally identifiable information.
“And to be sure, for adult users who seek to engage in online speech that Florida state officials and their political allies would approve of, the burden may be ‘modest.’ But for everyone else — especially those who wish to express dissatisfaction with Florida politics and officials — the Act’s disclosure requirements impose a heavy burden.” Rosenbaum wrote.
Rosenbaum invoked the parental empowerment movement in contesting the law.
“We should be wary of governments supplanting parents in deciding which ideas children should and should not be exposed to,” Rosenbaum wrote.
Florida Phoenix is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Contact Michael Moline for questions: info@floridaphoenix.com. Follow Florida Phoenix on Facebook and Twitter.
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