Florida’s quest to ban moderation on social media has hit a road block. And 11th Circuit court blocked it.
Texas and Florida have both been pushing laws that would ban moderation on social media. It’s all part of a quest to put an end to the fake controversy of “Liberal bias”. So, both states passed laws that would ban moderation in an effort to further promote hate and division in the country.
Of course, there is a big case to be made that curation and moderation on a private companies website is constitutionally protected. Naturally, this is a big part of the platforms case against the law as they took it to the courts. Recently, there was a positive development in this case. The 11th Circuit Court of Appeal has ruled that the law is unconstitutional. What’s more is that they said that moderation is constitutionally protected activity. From NPR:
ST. PETERSBURG, Fla. — A Florida law intended to punish social media platforms such as Facebook and Twitter is an unconstitutional violation of the First Amendment, a federal appeals court ruled Monday, dealing a major victory to companies who had been accused by GOP Gov. Ron DeSantis of discriminating against conservative thought.
A three-judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals unanimously concluded that it was overreach for DeSantis and the Republican-led Florida Legislature to tell the social media companies how to conduct their work under the Constitution’s free speech guarantee.
“Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it,” said Circuit Judge Kevin Newsom, an appointee of former President Donald Trump, in the opinion. “We hold that it is substantially likely that social media companies — even the biggest ones — are private actors whose rights the First Amendment protects.”
The move was warmly praised by digital rights. The Electronic Frontier Foundation approved of the ruling, though notes that they filed a brief to try and stop an emergency hearing to the US Supreme Court:
There’s a lot to like in the 11th Circuit Court of Appeal’s ruling that much of Florida’s social media law—the parts which would prohibit internet platforms from removing or moderating any speech by or about political candidates or by “journalistic enterprises”—likely violate the First Amendment and should remain on hold. The decision is a win for free speech that stands in stark contrast with a 5th Circuit Court of Appeals May 12 ruling allowing a similar, constitutionally questionable Texas law to go into effect.
While an emergency application to block the Texas law is pending before the Supreme Court (we filed a brief urging the court to put it back on hold), we are relieved by the 11th Circuit’s ruling in NetChoice v. Florida. The court recognized two crucial First Amendment principles flouted by Florida’s law: that platforms are private actors making editorial decisions, and that those decisions are inherently expressive. When platforms remove or deprioritize posts, they are engaging in First Amendment-protected speech, the court said.
Other states are apparently trying to pass similar moderation ban laws. So, the EFF is hoping that this is the precedence that guides other courts judgments:
The 11th Circuit has drawn important lines in the sand. But it won’t be the last. With lawmakers in Georgia, Ohio, Tennessee, and Michigan considering similar bills, it’s likely more courts will be called on to decide whether platforms have a First Amendment right to moderate content on their sites. We hope they follow the 11th Circuit’s lead.
Obviously, this story isn’t over yet. There’s still the US Supreme Court to make a decision on whether or not to hear the case. Given their draft decision to overturn Roe v Wade, you no longer can be certain how they will rule. For that level of the court system, the rule of law is mere suggestion and ideology can trump that. So, there’s still a risk that things can go sideways with this case still. Still, this development is a good one because websites need to be able to moderate content to keep social interactions reasonable. Hopefully, the worst case scenario never plays out.
Drew Wilson on Twitter: @icecube85 and Facebook.
