TALLAHASSEE (Florida Information Service)
Lawyers for Governor Ron DeSantis’ administration attempted on Thursday to persuade a federal appeals court to overturn a preliminary injunction that blocked a controversial law aimed at preventing social media giants such as Twitter and Facebook from robbing politicians and other users of online platforms.
Arguments before a three-judge panel of the 11th U.S. Circuit Court of Appeals followed a ruling last year by U.S. District Judge Robert Hinkle, who sided with the groups from the online industry who argued that the law — one of DeSantis’ top legislative priorities in 2021 — violated the First Amendment.
NetChoice and the Computer & Communications Industry Association, groups that represent tech titans such as Twitter, Facebook and Google, filed the lawsuit. The law was intended in part to prevent major social media platforms from banning political candidates from their sites and to require companies to publish – and consistently enforce – standards on issues such as banning users or content blocking.
Hinkle issued a preliminary injunction a day before the law takes effect on July 1, 2021.
Industry groups have argued that the measure violates companies’ First Amendment rights and would harm their ability to moderate content on platforms.
State attorneys argued that the social media groups were nullifying users’ speech rights.
Brian Barnes, a private attorney who represents the DeSantis administration, defended the restrictions during oral arguments Thursday, held in Montgomery, Ala.
Barnes told the three-judge panel that major social media platforms such as Twitter — which has around 300 million monthly users — should be regulated the same as “common carriers,” which can include things like transport and telecommunications companies.
Under intense questioning by Judge Kevin Newsom, Barnes said common carrier regulations should apply as users are locked out with major social media platforms once they log into the services.
“When a social media platform gets big enough, there’s this dynamic where it becomes very difficult for people who have joined the platform to switch to a different platform,” Barnes said. “And what the legislator is trying to achieve is this type of market failure where the network effect prevents people from changing in response to a problematic content moderation policy, in response to the unfair application of a stated content moderation policy.”
DeSantis made the issue a priority after former President Donald Trump was blocked on Facebook and Twitter after Trump supporters stormed the US Capitol on January 6. The governor and Republican lawmakers described the law as protecting free speech.
As an example of potential penalties in the law (SB 7072), companies that violate the ban on banning political candidates from platforms could be fined $250,000 per day for candidates across the board. from the state and $25,000 per day for other applicants.
The industry groups’ lawsuit and preliminary injunction request argued, in part, that the measure was politically motivated. The law was designed to target large online platforms, as it applied to companies that have annual gross revenues of more than $100 million or have at least 100 million monthly individual “participants” in the world.
“At its core, (the bill) upsets the rights of a targeted group of online services to decide what material to display and how that material should be presented,” said a legal memorandum filed by the plaintiffs. “In other words, the law strips these private companies of the ability to make editorial judgments — a fundamental part of the ‘freedom of speech’ protected by the First Amendment. Indeed, the law is designed to impose special limits on their speech on certain online services due to the open hostility of state authorities to their political opinions and “ideology”. The law is patently unconstitutional.
Hinkle’s decision last year called the law “riddled with vagueness and ambiguity”.
“The legislation currently at issue was an effort to rein in social media providers deemed too big and too liberal. Balancing the exchange of ideas between private speakers is not a legitimate government interest,” Hinkle wrote in a 31-page order.
Paul Clement, a former US solicitor general who represents tech industry groups, told the three-judge panel – consisting of Newsom and judges Gerald Tjoflat and Ed Carnes – that the law’s focus on big business of social media illustrates its flaws.
In passing the law last year, Republican lawmakers inserted a theme park exemption designed to protect Walt Disney Co. from social media restrictions. But they reversed course in a special session last week and removed the exemption after Disney clashed with lawmakers DeSantis and GOP over new state bans on teaching gender identity and sexual orientation in public schools.
During Thursday’s arguments, Newsom asked about removing the exemption for theme parks.
“The exclusion of a subset of major social media platforms…is truly terrible,” Clement explained. “In a sense, they (the legislature) kind of doubled down… It’s almost like a test case or a real demonstration of why speaker-based distinctions are problematic.”
Clement likened the technology statute to a law that would only apply to newspapers with a circulation of a million or more, excluding national publications.
“And then one of the state newspapers tears up in the Legislature and says, ‘Forget it, we’re going to get rid of that little state newspaper exclusion. I think that would show that it was all a bit rotten to the core,” he said.
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