A federal appeals court upheld an injunction Monday against a controversial social media law in Florida, giving tech companies a win as they gear up to face another court battle over a similar law in Texas.
The U.S. Court of Appeals for the 11th District, which covers Florida and several other states, rejected the state’s main argument that social media companies’ content moderation activities are not constitutionally protected. The court, however, allowed other provisions in the law requiring social media companies to disclose more information about the way they make content moderation decisions.
The Florida (and Texas) laws were inspired by published opinions from conservative Justice Clarence Thomas, stating that social media companies should be regulated like information-age “common carriers”; that is, more like public utilities and not as private enterprises that make and enforce their own community guidelines. The three justices on the panel of the 11th Circuit Court of Appeals, all of whom were appointed by Republican presidents, flatly rejected that viewpoint.
Here’s Circuit Judge Newsom (a Trump appointee) writing for the majority:
The question at the core of this appeal is whether the Facebooks and Twitters of the world—indisputably “private actors” with First Amendment rights—are engaged in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms. The State of Florida insists that they aren’t. . . . We hold that it is substantially likely that social-media companies—even the biggest ones—are “private actors” whose rights the First Amendment protects.”
For the time being, large social media companies are protected from being sued over their content moderation decisions. The state of Florida’s next move will almost certainly be a request to the Supreme Court to intervene and overturn the decision of the 11th circuit court, said Corbin Barthold, an internet policy counsel at the free speech think tank TechFreedom.
The 11th circuit court decision is in direct conflict with the 5th district appeals court’s decision on May 11 that allowed Texas’s social media law to go into effect. The tech industry groups that challenged both Florida’s and Texas’s laws in court—NetChoice and CCIA—have already filed an emergency application to the Supreme Court to block the Texas law. The 5th district appeals court has yet to publish its full and final opinion on the matter, but it’s extremely unlikely that the court would reverse itself and block the Texas law.
The conflicting opinions of the two federal appeals courts provides a strong reason for the Supreme Court to intervene, Barthold points out. Further increasing the odds is the fact that the Texas and Florida social media laws could influence the way social networks are regulated nationwide, not just for users in two states.
At any rate, Barthold said, the Supreme Court won’t decide whether or not to take the case (“grant certiorari”) until next fall. And even if the high court decides to hear it, it could be a year before it ultimately renders a decision.