Attorneys for the state acknowledged Tuesday that a 2021 Florida law that placed restrictions on social-media platforms posed “First Amendment problems” but urged a federal judge to reject a legal challenge that wound its way to the U.S. Supreme Court before being sent back to district court.
Gov. Ron DeSantis and the Republican-controlled Legislature passed the law after Facebook and Twitter, now known as X, blocked President Donald Trump from their platforms after Trump supporters stormed the U.S. Capitol on Jan. 6, 2021.
The U.S. Supreme Court last summer vacated conflicting appellate rulings in challenges to the Florida law and a similar Texas statute and directed lower courts to reconsider the decisions. The Supreme Court ruling did not resolve the constitutionality of the laws but kept in place an injunction that has blocked the Florida restrictions.
The laws sought to limit the ability of social-media platforms such as Facebook and YouTube to moderate content on their sites. Tech-industry groups NetChoice and the Computer & Communications Industry Association filed challenges, alleging that the laws violated constitutional limits on government restrictions of speech.
U.S. District Judge Robert Hinkle, who issued a preliminary injunction in 2021 blocking the Florida law, heard arguments Tuesday on state motions to dismiss the case and force the groups to turn over information related to social-media platforms’ decisions about content moderation. The groups’ members include tech behemoths such as Facebook’s parent company, Meta; Etsy; Reddit; Yahoo; and Google.
Hinkle repeatedly pointed to the U.S. Supreme Court decision, which he said “clearly” found portions of Florida’s law were unconstitutional.
In the Supreme Court’s main opinion, Justice Elena Kagan said that “to the extent that social-media platforms create expressive products, they receive the First Amendment’s protection.” But she found that appellate courts failed to properly consider the “facial nature” of the challenges to the laws, a critical element in deciding whether they met constitutional muster.
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“To make that judgment, a court must determine a law’s full set of applications, evaluate which are constitutional and which are not, and compare the one to the other. Neither court performed that necessary inquiry,” she wrote.
Darrick Monson, a lawyer with Attorney General James Uthmeier’s office, argued Tuesday that Hinkle should dismiss the lawsuit because the tech groups lacked any plaintiff “who is actually regulated by the law.”
But Hinkle said his initial task this time around will be to decide “the legal questions about what the law means” and to “try to take the statute and see what it applies to.”
“I think the Supreme Court made it completely clear that telling an entity like Facebook that you can’t post a comment to something that was posted on your platform was unconstitutional,” Hinkle told the state’s lawyers.
In a revamped lawsuit filed in November, attorneys for the groups argued social-media sites undertake efforts “to keep out potentially harmful, offensive, and unlawful material — including terrorist propaganda, child sexual abuse material, fraudulent schemes, and bullying” to try to keep the internet safe.
“Florida might disagree with some of those decisions. But the First Amendment does not permit it to ‘control the expression of ideas, promoting those it favors and suppressing those it does not,’” lawyers for the groups wrote, pointing to the Supreme Court ruling.
The 2021 law prevented platforms from banning political candidates from their sites and required companies to publish — and apply consistently — standards about issues such as banning users or blocking their content. The law applied to social-media platforms that have annual gross revenue of over $100 million or more than 100 million monthly active users. Companies could face steep penalties for violating the restrictions.
The judge, who will issue a written ruling on the motions, pressed Monson to “give me any example where it would be constitutional to tell anybody you can’t post a comment … on your site.”
“We acknowledge there were some First Amendment problems with some aspects of this law,” the state’s lawyer responded.
Tuesday’s arguments also touched on whether First Amendment protections would apply when non-humans, such as algorithms or artificial intelligence, make content-moderation decisions. The issue arose as the state’s lawyers asked the judge to force the groups to turn over information as part of what is known as discovery about how the tech groups determine what content to flag.
But Hinkle questioned whether the state was trying to “audit” the groups’ members to confirm its position that the state “needed to balance the ideological presentation” on social-media platforms. Such intervention “is precisely what the Supreme Court said in no uncertain terms was unconstitutional,” the judge said.
“Look. This case started with the state of Florida saying Facebook can’t censor people. … It violates the First Amendment,” Hinkle said. “But the Supreme Court said pretty clearly, that’s not how this works.”
Clark Hildebrand, an attorney with the Washington, D.C.-based Cooper & Kirk PLLC firm who represents the state, said the effort was aimed at trying to determine whether the platforms were applying moderation decisions consistently, as required by the law.
Hinkle also chided the state for expanding its interpretation of the entities that would be covered by the law, which he said was originally limited to social-media platforms but later expanded to include websites such as Etsy, Uber and Google.
The First Amendment protects editorial discretion of private publishers, “because ultimately people are going to disagree about what kind of speech is worth keeping online,” Christopher Marchese, the director of the NetChoice Litigation Center, told The News Service of Florida on Tuesday.
“Telling a social media website what they are allowed to post violates the First Amendment. That is the law of the land, and that is the law that will apply in this case,” Marchese added.
The state’s attempt to control the information presented on private websites is concerning, said Stephanie Joyce, a senior vice president for the Computer & Communications Industry Association.
“Anyone who uses an internet website should be very concerned that the state of Florida wants to tell private entities what they can do on their private websites, what they can show and not show. There is nothing more violative of the First Amendment than a government entity telling a private actor what to say,” she told reporters after Tuesday’s hearing.
News Service Assignment Manager Tom Urban contributed to this report.
