Earlier this year, Florida enacted Senate Bill 7072 – The Stop Social Media Censorship Act – which placed requirements and prohibitions on some, but not all, social media platforms regarding speech hosted on their Web sites. The law was scheduled to come into force on July 1, 2021, but on June 30, 2021, Judge Robert L. Hinkle of the United States District Court for the Northern District of Florida issued a preliminary injunction in NetChoice LLC, et al. vs. Ashley Brooke Moody, et al., who directed various Florida officials to take action to enforce the law because he felt the view-based legislation was preempted by federal law and violated the First Amendment.
The Florida laws at issue, among others, prohibited social media platforms from:
- Exclude job applicants from their sites;
- Use an algorithm to put the posts of a candidate in the thread of a user who wanted to receive it or to exclude the post from the thread of a user who does not want to receive it;
- Take measures to “censor, deplatform or ban the shadow” of a “journalistic enterprise” on the basis of the content of its publication or broadcast; and
- Change their rules of use, conditions and agreements more often than every 30 days
The legislation also required that social media platforms:
- Allow users who post content to dictate how it is displayed, regardless of how the social media platform or the post recipient wishes to receive user posts;
- Publish its standards on how they censor, deform or ban ghost users; and
- Provide certain other information to platform users.
Finding that the plaintiffs (professional associations whose members included social media providers affected by the legislation) had demonstrated a probability of success on the merits to justify the entry of the preliminary injunction, Hinkle J. first found that 47 USC §230 authorizes interactive service providers Computer Services, that is to say, social media providers, from moderating their own content and prohibits states from passing laws inconsistent with §230.
Justice Hinkle also ruled that the plaintiffs would likely outweigh their claims that Florida laws violated the First Amendment. First, he felt that the actions of social media providers did not violate the First Amendment. He then ruled that the First Amendment applies to speech on the Internet “just as it applies to more traditional forms of communication”. The court also found that a precedent established that a private party who creates or uses their editorial judgment to select content for publication cannot be compelled by the government to also publish other content in the same way. Accordingly, the court granted the plaintiffs’ request for a preliminary injunction.
All accused of the NetChoice The case filed a notice of appeal on July 12, 2021. Thus, the United States Court of Appeals for the Eleventh Circuit will have the next word on the constitutionality of Florida’s social media censorship law in the future.