11th Circuit Judges Press Both Sides on Fla. Social Media Law

Florida is appealing a district court’s preliminary injunction of the law that makes it illegal for social media sites to deplatform political candidates and requires them to be transparent about policing. Gov. Ron DeSantis (R) removed an exemption for Florida theme park owners like Disney last week (see 2204250054). NetChoice and the Computer and Communications Industry Association (CCIA) sued Florida and are separately challenging a similar Texas law.

Judges pushed each attorney more than 15 minutes beyond their scheduled 15-minute limits in the hearing’s opening rounds. Newsom asked Florida counsel Brian Barnes if he disagreed that the point of free speech protections is to stop the government from punishing speech it doesn't like. The government may regulate speech in a neutral way, responded Barnes, citing 1988 Supreme Court decision Frisby v. Schultz, which upheld a city ordinance against picketing in residential neighborhoods. Barnes also cited 2006’s Rumsfeld v. Forum for Academic and Institutional Rights, which said the government could withhold funding from a law school that restricted military recruiters’ access due to the school’s disagreement with “Don’t Ask, Don’t Tell.”

Newsom asked if Florida is saying social websites look more like law schools than they do the Miami Herald: “That just seems strange to me.” The judge asked if the lawyer disagreed sites are “picking and choosing” like newspapers. Readers know newspapers affirmatively select content, unlike social media, replied Barnes.

The court was focused on preserving the military’s ability to recruit, with the speech interest ancillary, in Rumsfeld, argued tech groups’ counsel Paul Clement of Kirkland Ellis: It might be parallel if Florida sought to regulate discrimination only in job postings on social media sites. The law school was still allowed to post signs saying it disagreed with the military policy, but under Florida’s law, sites wouldn’t be allowed to attach disclaimers, he said. Agreeing social sites may exclude less content than a newspaper, Clement said it’s what was excluded that caused controversy and is at issue.

Newsom asked if Florida believes social platforms are common carriers by nature or if Florida can make them so by calling them that. Neither, said Barnes. He cited words by Supreme Court Justice Clarence Thomas making the comparison. Newsom said Thomas sounded “tentative,” saying there might be an argument but not saying so definitively. Barnes replied, “The argument he sketches is exactly the right one.” Clement later argued the federal government, not states, would likely be the one to decide what are common carriers.

Newsom asked if the law would allow Twitter to censor conservative viewpoints if it announced upfront that it was a liberal platform. Yes, said Barnes, as long as it made the policy clear and applied it consistently. Newsom asked how the law’s protections for candidates’ speech isn’t content-based. Barnes compared it to equal-access laws and said websites could still censor posts based on their policies. But a candidate couldn’t be deplatformed under the law “even if he is a serial purveyor of pornography,” said Newsom. Yes, said Barnes, but he could be censored or suspended 14 days.

Florida “doubled down” on its illegal speaker-based law when it removed the Disney exemption after the company started saying things the state didn’t like, argued Clement: It showed the whole law was “rotten at the core.” Since every provision applies only to big platforms, the whole law must be overturned, he argued. During rebuttal, Barnes said the court could keep parts of the law since it contains a severability clause.

The entire law could be speaker-based since it applies only to tech giants, said Newsom. Judge Gerald Tjoflat also pointed out the law makes a distinction between large and small platforms. But Barnes said the legislative record shows that legislators considered how network effects make it hard for users to switch from the largest platforms.

Carnes voiced doubts about using DeSantis' statement when signing the bill to show wrongful motivation for the law. The governor gets no votes in the legislature, and courts usually give little weight to presidential statements in federal cases, said the judge, participating virtually. If legal “taint” from legislators’ statements can be considered, Carnes wondered aloud for how long after the law passed it would apply.

A governor’s statement might show how the executive branch intends to enforce a law, said Tjoflat. Later, Newsom noted the governor’s signature represents 50% of the state lawmaking process.

Carnes said he's interested in the practicality of applying rules only in Florida. But he later noted that isn’t really an issue for the court now. Barnes said social sites could comply because their central business is location-based ads, and they already follow other kinds of laws from different states and countries.

Tech Challengers Pleased

Tech group officials are feeling upbeat, they said after the argument in interviews. “It went exactly as expected,” said CCIA President Matt Schruers. “The state is in an unenviable position of having to defend a law that’s unconstitutional on its face and backed up by a record that reveals unconstitutional motives by every relevant state actor.”

Schruers dismissed Florida’s network-effects defense for the law targeting big companies. “There is intense competition in the marketplace for social media services,” the CCIA president said: Saying all the companies are monopolies “overlooks the mono in monopoly.” Also, it’s “peculiar” that Florida urged the court to look at the legislative record for an economic reasoning on why the law targets only big companies, while simultaneously saying not to look at the legislators’ and the governor’s statements to find motivation, said Schruers. Carnes’ questions about how much weight to give statements “pertains to a legal issue that is unlikely to be outcome determinative,” he said.

Judges looked engaged, asking questions the state couldn’t answer, said NetChoice Policy Counsel Chris Marchese. Florida was “grasping at straws” with its network-effects argument, said General Counsel Carl Szabo. The law could have targeted monopolies if that was the intention, he said.

The 5th Circuit plans argument on the Texas case May 9. Texas policymakers argued their similar law was “insulated from the defects of Florida’s statute because it didn’t have the Disney exemption,” noted Schruers. “Today’s argument shows that issue is a sideshow.”