A federal judge Thursday rejected an attempt by Florida to scuttle a constitutional challenge to a 2021 state law that placed restrictions on social-media platforms.
U.S. District Judge Robert Hinkle issued a 43-page decision denying the state’s motion to dismiss the lawsuit filed by the tech-industry groups NetChoice and the Computer & Communications Industry Association. The groups argue, in part, that the law violates First Amendment rights.
Among other things, the law would prevent platforms from banning political candidates from their sites and require companies to publish — and apply consistently — standards about issues such as banning users or blocking their content. The law would apply 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.
A major part of Wednesday’s ruling involved the state’s arguments that the groups, whose members include companies such as Google and Meta, don’t have standing to challenge the law. The state contended that members of the groups needed to be part of the case because of factual issues involved.
Hinkle wrote that the case “will surely involve more analysis of member circumstances than some, but there is no reason to believe, at least at this time, that the litigation will require member ‘participation’ — that is, excessive member involvement.”
“One need not have individual participation by members to know that requiring a traditional social-media provider to publish content it does not wish to publish or prohibiting a traditional social-media provider from adding comments to posts to convey information it chooses to convey runs afoul of the First Amendment,” Hinkle wrote. “The plaintiff associations plainly have standing to pursue those claims, and while standing is not distributed in gross, the associations also have standing to pursue their First Amendment claims to each of the other challenged provisions.”
Hinkle also backed allowing the groups to pursue claims that the law is unconstitutionally vague.
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For instance, he cited part of the law that would prevent platforms from using what are called “post-prioritization” algorithms for content posted “by or about a user” who is a political candidate. He said the law does not define the word “about” as it applies to candidates and raised questions about whether posts by or about candidates would have to go to the top of user feeds.
“The defendants (state officials) have not attempted to explain what these provisions really mean or how they would be applied,” the judge wrote. “Nor have the defendants offered any theory under which a state can preclude this kind of curating without violating the First Amendment.”
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.
Hinkle in 2021 issued a preliminary injunction to halt the law on First Amendment grounds, and an appeals court in 2022 upheld most of his ruling. But the U.S. Supreme Court last year vacated the appeals-court ruling and sent the lawsuit back to the lower courts.
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 in the Florida case and a similar Texas case failed to properly consider the “facial nature” of the challenges to the laws, a critical element in deciding whether they met constitutional muster.
Hinkle held a hearing May 6 on Florida’s motion to dismiss the case. His ruling Thursday said attorneys for the state acknowledged during the hearing that “there are First Amendment problems with some of the provisions” in the law.
“Even so, the state has done nothing to repeal or amend those provisions,” Hinkle wrote..
